*1 PASADENA, Appellant, CITY OF ex
Thе STATE of Texas rel. CITY OF al., Appellees. et HOUSTON
No. 15048. Appeals of Texas.
Court Civil (1st Dist.). 9, 1967.
Nov. 9,May
Rehearing Denied Rehearing May 31, Denied
Second *2 Houston, Easterling, A. Charles James Pasadena, Riggs, appellant.
R. for Billy Resweber, County Atty., G. Joe Kerr, Atty., County R. First Asst. Will Sears, Houston, City appellee of Hous- for ton. Houston, Heard, appellees for
Frank L. Co., Refining Friendswood Humble &Oil Develop- Development Co. and Red Bluff ment Co.
BELL, Chief Justice. court This is a case in which the trial summary judgment sustained motion holding in favor of State of Texas City certain ordinances ousting invalid and it from the same The described said ordinances. judgment held valid certain ordinances at- had been City of Houston which in its an- City tacked of Pasadena insti- quo proceeding swer to the warranto State, held that tuted such ordinance City within the limits of Houston. appeal grew quo warranto out of a Texas on
proceeding filed State of Houston Octo- relation State, ber 1965 in the 61st District on the Court relation of the of Hous- 684,547. County, against Cause ton et al. the City Harris No. of Pasadena in amended, in petition 55th subsequently Court District numbered named, 571,595. which additional relators were second was instituted petition. trial was had on the amended the City relation of of Pasa- present against suit We notice number dena *3 prior June, two 129th District Court and numbered 594,632. disposed suits had been of be- Judgments filed were rendered both Pasadena will be tween and Houston that 22, 1962, upon of these causes on June they discussed because involved some agreement parties thereto. we ordinances of both cities that will opinion, judgments refer to our and the lengthy Because description involved, rendered those causes are material ordinances and judgments we are making diagram part hereof to demon- appeal. disposition of this encompassed strate areas in the various quo The first of the prior suits was a judgments. ordinances and proceeding warranto instituted
SQI City of that had earlier ordi- following are the material part of involved ordinances become passed Houston in were nances 594,632, the ordinance 571,595 in Houston. The in Causes Nos. de- beсause of defective was also attacked were rendered agreed judgments scription. of La Porte While 1962: June adjudication in that case respondent, passed on 6, 1960, On the dis- as to La Porte not material to June reading Ordinance No. first controversy. petition position of this reading De- and final on second validity of put issue the specifically The ordinance cember and Houston Pasadena Ordinance No. 1449 diagram on the shown 60-989. Other Houston Ordinance No. northeast-southwest parallel running lines having been alleged ordinances were Road. north Genoa-Red Bluff lying years preempting earlier ter- several number placed area We ritory *4 Pro- the name “Pasadena”. “1449” upon by entrenched Pasa- was corner of ceeding from the southwest 1449, dena Ordinance for which additional generally south- running gave tract it calls the latter ordinance was invalid. reason we diagram that point to a on our west them, but specifically neеd notice We “A”. with the letter have marked only generally mention them to show substantially A, following proceed calls par- the there were various issues between marked intervals path we have at the uncertainty the ties which created out- the of the shaded along lower by petition come of the suit made the meandering closely long dotted area. 571,595 in an- Cause No. and Pasadena’s substantially point A line continues from probably the swer thereto which led to G, E, F, C, D, B, along the line marked 22, agreed judgment Hous- 1962. June represent point I would H and I. The asserting validity ton was the Ordinance designated corner we southeast by claiming No. 60-989 long mean- parallel This lines. territory involved preempted ordinance west, dering be the south line would petition in this In case. its answer to the purported to boundary east area 571,595, in Pasadena attacked Cause No. 1449, by Pasadena Ordinance annexed to by various ordinances Houston Genoa- north line of that lies south of the validity specifically attacked the of No. Red Bluff Road. encompassed in- 60-989 that volved in this case. City of Hous- On June No. reading passed ton first Ordinance Texas, 18, 1962, May On the State of Har- in 60-989, annexing territory lying City on relation of City County already in ris Porte, City granted leave of La was in incorporated validly Houston or not proceeding against quo to file a warranto city. some other City filed in of Houston. and was numbered 61st District Court sec- passed on After Ordinance 594,632. petition the valid- attacked December, reading in ond and final annexing ity ordi- Houston various Texas, relation of nances, This was including No. 60-989. individuals, City and numerous of Houston countersuit, in though not form really a in quo proceeding warranto filed or cross-action to Cause No. a counterclaim 571,595. upon County, It asserted entrenchment of Harris District Court 55th City territory by Pasadena. previously annexed against Pasadena and 571,595. specifically for a prayer it asked Porte, In the numbered of La invalidity сer- of Ordinance declaration of Pasadena from sought The suit to oust No. 60-989. Ordi- extensive tain On of Pasadena ordinances that disputes determined be- June expressly Pasadena, No. 1530 au- tween Houston and they but are thorizing entry the rendition and not material to a decision of issue be- judgments finally fore in were rendered and us this case. 571,595 594,632. entered Causes Nos. 22, 1962, On 594,632, in Cause No. June On 62- Ordinance No. June judgment was rendered and entered gave Houston the same 129th District Court. This counter authority to its counsel. quo warranto suit filed the State on the 22, 1962, 571,595, On relation Pasadena and Cause No. La Porte June they which became judgment against
final entered movants rendered and Hous- they affirmatively 55th ton and District judgment Court. This at- tacked, ordinances, among other significant made these adjudications: sought Ordinance 60-989 and to establish That Pasadena was ousted from of Pasadena Ordinance 1449. jurisdiction or assumed over jurisdiction This judgment determined that the issues all territory Ordinance 1449 in the finally case had been adjudicated except the territory paragraph described in 571,595 Cause No. and thus the cause had I of the judgment. The described area become moot. It declared that because of held be lawfully annexed Pasadena is justiciable the other there was no substantially that lying north of the north controversy parties between the as to the *5 line repre- of Genoa-Red Bluff and Road petition issues set out in the and informa- sented on by our area diagram the marked judgments tion. These final became and “Pasadena” by diagonally and also shown changed. in way no been parallel description drawn The lines. fixes line north of Bluff Road as Genoa-Red Tranquility prevailed seems to have un- city the south limit of Pasadena. City til December On this date the passed of reading Houston first on Ordi- City 2. Ordinance 60-989 of the began nance 62-1766 which annexation Houston, passed adopted first on read- strip a ten foot of land to the south of ing 22, 1960, exрressly was declared June segment Pasadena. The north of the ten validly passed to have been introduced strip foot had for its north line north thereby on date Houston line of Bluff Genoa-Red Road which was validly extended, extend, claimed to and at by the south line of Pasadena fixed as judgment time of still claimed annexa- judgment court as above The 10 noted. territory jurisdiction tion over in Har- begin- foot strip diagram shown on our County ris City not theretofore in ning A at where connected with PJoint or validly Houston not theretofore con- indisputably land of the within limits city, in village. tained some other town or proceeds of Houston. from Point adjudicated by It was virtue of such parallel lines, A as on between shown our jurisdiction annexation established in the substantially diagram, along the devious City of Houston 60-989 all by Ordinance route marked at intervals in Pasadena Or- Houston Ordinance 62-1766 and the let- 1449, except dinance No. that described C, D, G, H, E, F, I, L, ters B, J, K, M and immediately I, adjudication above was N. N jоinder Point would mark the validly claimed Houston preempted strip previously 10 foot established 22, 1960, on since that been June This ordi- limits of of Houston. time and was at the time of with- passed reading January final on jurisdiction annexation exclusive large lying between the area Houston. strip interior line of the 10 foot was not However, adjudications were 3. There other as covered Ordinance 62-1766. 60-989, covered other covered certain was still Ordinance 65-1561, shown as Houston reading and Ordinance passed on first had been the declaration provisions, was by its awaiting action. pending further was still proceed- institute City’s intention to strip the area was a The 10 foot described, which ings the area to annex judgment been de- by the above that had substantially the shaded appears as on annexa- within the exclusive clared to be diagram. Sec- February closely on our dotted area jurisdiction of Houston. On tion held hearing to be for the passed on tion callеd 60-989 Ordinance m., 11 a. at the Houston Council Chamber areas reading but deleted small second 3 directed September 1965. Section when that contained the ordinance in a publish the notice City Secretary do reading. deletions passed on Such first in Hous- newspaper general not, however, circulation any way eliminate an area least annexed at ton and the to be by the involved other ordinances twenty days nor than one time not more suit. days prior day less than ten remained static after state of affairs hearing. passage 4 stated Section passage the final of Houston Ordinance comply intended the ordinance 62-1766, August 18, 1965. On until Act, Municipal 6 of the Annexation Section latter date Ordinances 65- provided such Act was valid. Section 1561 and 65-1555A. af- provided also should not ordinance already passed on one fect ordinance Legisla- It should here be noted that passed, finally readings, or more but adopted in 1963 Mu- ture Texas expressly asser- and in addition made such nicipal re- Annexation Act which we will tion as to 60-989 which 970a, fer as Ann.Tex. to Article Vernon’s 1960, on reading first June only need the sub- Civ.St. here notice We February reading second as amended 6 and 7. Section stance Sections 13, 1963, reading amended on third provides city may that before a institute also 1964. The section on December *6 an proceedings provide annexation it shall provided procedure annexation for opportunity persons be for interested to independent any by this ordinance was of public hearing at a be held not heard to proposed pending and annexation of days ten twenty more nor less than than pro- territory and such other described proceedings. days prior instituting to such it. ceedings be should not affected hearing published of is be Notice to in the newspaper general circulation day passed on first the same On city territory proposed be annexed. and reading 65-1555A. This ordi- Ordinance published shall be at least once notice Or- nance described the same as twenty days nor less than not more than passed and on first dinance 65-1561 hearing. Annexation days prior ten con- reading. 2 of the ordinance Section brought shall be to conclu- does recital that the ordinance tains the days the date on within sion repeal, impair, modify anywise or proceedings instituted the annexation were whether any affect annexation ordinance void. the annexation shall be null and or including completed pending, or Ordinance asserted, materiality is as here Sub- So far express provi- there 60-989. Then is the provides that as D of division Section any sion that shall ordinance affect instituted any pending on or passed annexation ordinance theretofore thereafter notice calling hearing giving 1963, 15, annexation shall March after for days the institution annexa- any relative to completion within brought to provided pro- рroceedings. tion It also Act. Article the effective date of after ceedings inde- 22, under this were ordinance August effect into 970a went pendent pend- proposed proceedings completing for line The dead territory. ing annexation of such November pending was that were 21, 1965, On September after the date August 1965, passed On Ordinance public set for hearing by Ordinance 65- 1698 which really defined its existing 1561,Houston Ordinance No. 65-1555B was boundaries and showed the north line of passed introduced and reading. on first It city Genoa-Red Bluff Road be the south described the same territory contained as limit line of Pasadena as fixed in Ordinance 65-1561. On first passage 571,595. on in Cause On the same reading it was referred Ordinance passed day Ordinances 1699 and Committee. It was amended and first reading on and final as emer- on reading second October gency ordinances. Both ordinances were final reading November purportedly passed authority under 1965. It is shown in the record Houston V.A.T.S., p. Article Acts of Ordinance 65-1555BR. The letter “R” gives cities, which in substance located on merely shows was amended after it was navigable streams operating spe- under introduced. significant It is ordi- charters, right cial annex nance as introduced or amended added no side of each the thread of stream territory to that described for a distance of 2500 feet width and 65-1561, finally passed but as amended and for a distance stream 20 miles down said portion eliminated a small ordinary south- or less an air line from the west shaded area on our dia- an- city. boundaries of such a Such an gram. portion eliminated not dis- did purpose is es- nexation limited joinder turb ad along a substantial area of tablishing and wharf and navi- developing the existing limits of Houston as estab- gational facilities for the use industries lished destroy since and did not ad- within inhabitants located joinder with the 10 strip foot area. Ordinance 62-1766. The also ordinance an Pasadena Ordinance relatively eliminated just two small areas on either side for width 2500 feet area west and northwest area shaded extending Bayou” south- of “Middle marked “Red Bluff”. This Houston Ordi- city from the easterly line 1.51 air miles obviously 65-1555BR the one significant that limit line Pasadena. passed pursuant to the intention initate right-of- point north beginning proceedings expressed annexation in Ordi- Road 2500 way line of Bluff Genoa-Red nance 65-1561. proceeding This was a Bayou. The feet east of the thread of the 970a, under Article V.A.T.S. an intersection northwesterly line calls for *7 line of right-of-way Genoa- with the north
Houston Ordinance 65-1555AR was point inter- of passed 1965; Road. 18, Red Bluff From such reading August first beginning. of place the call is to the passed amended and section reading on second Oc- 5000 feet of 6, includes finally tober thus passed and Novem- This ordinance by Houston Or- strip ber foot the 10 covered 1965. covered the terri- same part tory It also covers as dinance 62-1766. Quite Ordinance 65-1555BR. obvi- ously Houston, 65-1555AR, Ordinances by by Houston the area covered Ordinance passеd two was and 65-1555Athat were following procedure annexation exist- 65-1561 ing 970a, independently days of said earlier. Article so if the latter statute be invalid Houston type ordi- Ordinance 1700 is the same would still have validly annexed the terri- 1183,V.A. passed pursuant Article tory. mile south of began point at a one It T.S. limits of city After passed “present” called the Houston what it Ordinance 65- strip boundary of a 1561 on December and south had on Pasadena and Ordinance same date included in Houston Ordinance of land 65-1555A the thread 65-1555A, reading, first and east of be- 2500 feet of Pasadena north to the proceeded came Bayou. active. It of the particularly westerly rendition, their Lake, conditions since thence shore line of Clear Further, it passage of Article 970a. line to intersect along such shore says the area sav- judgment describing of the the thread line 2500 feet west of Too, says it ed defective. Bayou, mile south to Pasadena was thence to a line one its city line Pasa- annexations under Ordinance 1699 “present” limit south pursuant The to Article dena, beginning. 1700 were place to the thence pur- by not Article was was affected 970a. total of the two ordinances distance ported, passage in the the south in an air line from 5.6 miles by comply boundary with Article 970a. Pasadena established Or- as The passed August dinance 1698 not 62-1766 did Houston Ordinance 1699 and territory by Ordinances covered but territory adjacent annex Houston by check- diagram 1700is on our shown land territory long strip of was a narrow area, except pro- ered that the checkered of Houston. unsuited to the economic needs on the east and west side trusions east and that run feet from lines un- was 3. Houston Ordinance 62-1766 Bayou parallel were thread of arbitrary reasonable pro- by covered The these two ordinances. expanding, solely prevent Pasadena from by Pasa- purportedly annexed trusions were rights under and denied Pasadenа its protru- dena Ordinance 1722. These two Ninth Amendment Constitution portions lines sions connected with the United States. by part of such fixed Ordinance 1700. No 4. Houston Ordinance 65-1561 was city adjacent contiguous or areas 970a, but published required by Article as by judgment limit lines fixed Cause caption published by only and follows 571,595or Ordinance 1698. and 65-1555BR 65-1555AR Ordinances quo proceeding out of warranto are invalid. appeal sought which this arose ouster filed Both Pasadena and Houston motions by territory Pasadena from the covered summary motion judgment. Pasadena’s Pasadena 1700 and 1722 Ordinances sustained. Houston’s was overruled territory they upon entrenched 62- finally annexed Houston Ordinance territory that all declared years January, 1766in than two more 62-1766, in Houston Ordinances described before the introduction an- validly 65-1555AR and 65-1555BR Too, as- Houston above three ordinances. is a of Houston and nexed to serted the ordi- said City. City of Pasadena of said It ousted the to be with- nances invaded declared claim of usurped pretended or jurisdiction exclusive annexation juris- authority municipal annexation or 571,595 agreed judgments final Causes any part all or diction over therefore, 594,632, was, and Pasadena attempted to be described judgments estopped to invade said or 1722 1699, 1700 Pasadena Ordinances territory. Further, as- finally annexed encroaching on Houston’s acquired in an- priority serted that also city lim- *8 territory lying south of Pasadena’s by passage of jurisdiction nexation Or- Bluff (the line Genoa-Red its north of 65-1561, and 65- dinances 65-1555AR judgment out final Road) set by the territory 1555BR covered over the 571,595 in Cause No. 55th District Court Pasadena ordinances. Too, 22, Pasadena on rendered June exercising or perpetually enjoined from answered, contending, and here authority annex- any municipal or claiming contends, in follows: substance as portion jurisdiction within all or ation by attempted be annexed territory es- operate as an do not judgments 1.The changed suсh Pasadena ordinances. toppel adjudicata because or res 396 efficacy correctly
The trial court sustained affect of Ordinance 60-989. City summary judgment Its such as not to affect motion terms were said 20, 1963; correctly that of until that Houston and denied ordinance November so City encompassed territory until date the of Pasadena. such
within remained within exclusive an- jurisdiction nexation Red Bird of Houston. Insofar as Houston Ordinance 62- Village ex rel. Duncan- v. concerned, 1766 is it was introduced De ville, 548 writ 5, 1962, (Tex.Civ.App), 385 S.W.2d finally passed cember and was Janu ref. 16, ary 1963. It annexed a terri tory that had in Houston been included by upheld
Ordinance that had 60-989 been fact, In addition to the as we have judgment judicially declared the discussed, just judicially that Pasadena is territory was within the exclusive annex estopped asserting from the area an jurisdiction ation The main Houston. by nexed Houston Ordinance 62-1766is 571,595 594,632 issue in Cause and Cause adjacent there Houston and whether Ordinancе 60-989 said fore its later Ordinances 1700 preempted Pasadena Ordinance 1449 had valid, 1722are we hold that 62- Ordinance jurisdiction annexation over the area south territory adjacent 1766annexed that was of the north line of Genoa-Red Bluff Road. Houston under the decided cases. By reason of judgment final favorable agreed judgments the south line fixed Houston, having changed there no been Pasadena. This south left land of Pas prior passage of conditions to the final adena and south and southeast of Houston 62-1766, estopped Ordinance Pasadena is mutually adjacent and it by judgments asserting area at the Houston introduced then time adjacent annexed said ordinance was finally passed Ordinance 62-1766. Pasa exclusively of Houston and with dena did not initiate its Ordinances jurisdiction. annexation This issue its years 1700 and until more than two litigated by parties had once been passing later. Houston, first litigated not be time. Hous could second 62-1766, prior Beyer in right annex. Company ton Terminal Land Wester- v. Templeton, v. Tex. S.W.2d 134. green, 526; Per 27 S.W.2d Company Smith, mian Oil engineers, As shown affidavits of two At uncontroverted, S.W.2d A.L.R. which are or- various passage time of the of Ordinance 62-1766 dinances and the in Cause No. thereafter, 571,595, remained Ordinance 60-989 annexed piece legislation. live The ordinance depicted diagram. we have it on our expressly provided passage that its should Such study affidavits and our laborious in nowise affect theretofore descriptions ordinance us there establish to one but readings description. Too, or more not were no deficiencies in ordinances, passed, finally any such in study but the uncontroverted and our affidavits 60-989, cluding continue indisputably should remain and establish that Pasadena Ordi- purpose to be effective their intent and strip previously 1699runs across Too, therein stated. Ordinance 60-989 was annexed Houston Ordinance 62-1766 reading February second 1963. Pasadena Ordinances and 1722 Thus, the court upon by territory ordinаnce encroach previous 65-1561, its judgments been held to described in Houston Ordinances validly preempted jurisdiction was, annexation 65-1555AR and There 65-1555BR. to Houston at time therefore, remained effective concerning no fact issue whether *9 part territory finally of the was annexed Pasadena’s attacked in this suit ordinances 970a, 62-1766. Article upon Ordinance V.A. territory entrenched over which Hous- T.S., to had not priority. appeal become effective so as ton claimed The will turn
397
City
law,
adjacent
existing
of such
validity, as a
as shown
to
limits
on the
matter of
they
passed.
were initiated
record,
when
by the
of
ordinances.
contention that
Pasadena’s
Ordinances
territory
adjacent
to
Whether
they were
1699 and 1700 were valid
city
ex rel. Pan
is a
of law. State
V.A.T.S.,
1183,
pursuant
to Article
enacted
City, 157
American Production Co. Texas
v.
cannot be sustained.
450,
303 S.W.2d
a lim
1187, V.A.T.S., places
Article
above
of
We have stated
the substance
authority
Article
apparent
of
itation
attack,
on Ordi
particularly
Pasadena’s
power
provides that the
1183. Article 1187
area en
nance
hold that the
62-1766. We
the extension
granted shall not authorize
compassed within
62-1766 was
Ordinance
any
limited
territory
city
for the
of
of
adjacent
City
under the
to
of Houston
any
include
land
purposes named so as to
principles
following
set forth in the
cases:
any
city
already
part
other
of
which is
State
rel. Pan American Petroleum Co.
ex
corporation
any
or town
land at
time
supra;
City
City,
v. Texas
ex rel.
of
Ar
belonging
city
or town.
to
University
City
West
et
of
Place
al. v.
provides
ticle
for annexation
1183
effect
1159,
Houston,
711,
L.
322
64
88
U.S.
S.Ct.
boundary
an
begin
ordinary
of
at the
1554; City
Ed.
of
ex
Houston v. State
rel.
city.
encroached
annexing
1699
Ordinance
City
Place,
University
142 Tex.
West
upon
validly
annexed
Houston
land
190,
928;
v.
City
176 S.W.2d
of Gladewater
was,
validity
therefore,
of Or
invalid.
173,
Walker,
State ex rel.
138 Tex.
157 S.
depended
validity of
dinance
on the
Or
1700
641;
City
W.2d
State ex rel.
Graves v.
It, too,
The vali
dinance 1699.
is invalid.
Sulphur Springs,
(Tex.Civ.
The effect of our proceeding. How- would still have a Or valid Pasadena ever, allegedly 1699,1700 Ordinance 65-1555BR lying below dinances and 1722 pursuant Article the terms of Road is north line of Genoa-Red Bluff proceed- By 65-1561 be 970a. validly This Ordinance encompassed ings were initiated. cause the ordinances *10 required give the correctly notice of intention to reason ousted Pasadena from the territory, annex the described and a time territory fix south of the northline of Genoa- place and hearing. ordi- initiating This Red Bluff Road. For this reason trial published be entirety. must correctly granted its court the State’s motion record here affirmatively not summary However, does show for judgment. published that it was so that there was pleading prayed judgment State’s for a also public hearing. Pasadena its answer declaring territory that covered Stamped alleged published. it was not 65- Ordinances 65-1555AR and language: “Cap- on the ordinance was this validly 1555BRhad been annexed to the tion Published Houston Chronicle—Date Houston. The trial court’s August 25, Appellees 1965.” that argue made this declaration and determination. specifically since the held, ordinance however, directed We have a fact issue that publication by City Secretary concerning will validity was raised Or- presumed public performed such official dinance 65-1555BRbecause the fact issue duty her ap- and the burden on the concerning publication of Ordinance pellant to, by an affidavit and not mere really 65-1561. did Ordinance 65-1555AR pleading, publication. assert the want validly annex because comply
did not Article 970a. This question presents just us with a what normally true that there is a judgment we should render. presumption public perform that a official ed duty. his is a summary judgment We determined that the is case and the burden in on the movant to sues validity 65- Ordinances show considering that pleadings, exhib 1555AR, 65-1555BR 65-1561 and its, depositions and affidavits there is no they causes of action constitute are sever- genuine evidentiary issue fact. The facts able from the involving causes of action are construed against strongly most validity of Houston Ordinance 62-1766 movant. If a may be reasonable inference Pasadena Ordinances and 1722. drawn exists, that material ultimate issue We, therefore, such sever issues and causes summary judgment may granted. not be of action and remand them to trial court burden on Houston to establish as with instructions them without dismiss matter of law ordinance prejudice. We order causes dismissed part aas of its case. We are of view only Pasadena defendant stamped notation or it, in light holding of our valid the other “Caption” dinance published, spec ordinance of Houston and invalid the a reasonable may inferenсe be drawn ified ordinance, Pasadena re leaves no only this was the publication. form We spondent severed cause who has are not unaware pro that the charter legal standing to such ordinances. publication vides for cap ordinances tion, but this was a proceeding under Article part judg- We affirm that of the court’s publication by 970a and caption would holding ment valid Houston 62- required have been nor sufficed. There holding 1766 and therein de- fore, a fact issue was raised concerning validly scribed annexed to the of Hous- validity of annexation under Ordinance 65- holding ton and Pasadena Ordinances 1555BR. 1700and ousting 1722invalid and Pasadena from the them that We would make it clear trial that the lies south north line of Genoa-Red court correctly declared Pasadena Ordi- Bluff Road. nances 1722invalid because they adjacent annexed land not part, Affirmed and in severed prior because of Houston’s valid annexation as severed reversed remanded with under Ordinance 62-1766 and also for such instructions. *11 argument for oral set the motions motion Rehearing for Motions On The writer had. argument was and oral Pasadena, and appellant, the of Both independ- associates to asked his two a filed Texas, have appellee, State disqual- question his ently the consider rehearing.
motion for
and, as evi-
They have done so
ification.
con-
Coleman’s
denced Associate Justice
merits
Appellant’s
to the
motion as
qualified.
him
curring
found
opinion, have
asserting the
in
appeal
purely formal
is
consideration,
writer
independent
On
erred
respects
allegedly
in which we
various
It thus becomes
in
conclusion.
concurs
appeal.
original disposition
in our
in
deci-
duty
participate
to
writer’s
we
complain that
In this
it
connection does
responsibility.
dodge
sion
not to
City of
expressly
the case of
did not
notice
County
Dis-
Control
Irving Dallas
Flood
in
urges
in error
Appellee
that we were
thoroughly
trict, Tex.,
We
lished therefore, and it be reasoned it knowledge Since was common that all of that only publication. this was the Refining stock & of Humble Oil Com- pany, herein, one of the relators is owned We fail see this was a collateral by company, request- that the Chief Justice attack. The brought parties State ed briefs as suit assert from to whether ing the invalidity ownership disqualified of the Pasadena such stock them ordi nances they sitting studying annexed in this case. After that previously by concluding been annexed the briefs that Hous stоck ton ownership ordinance. It in- directly seems to us not constitute such an this did places in contemplated issue the terest in the as was Houston case ordinances and the burden Article Sec. Constitution of the was on State Texas, Ann.St., State to validity. establish their the case Vernon’s also' gave opinion right Pasadena the decided and an handed down on to attack the Houston ordinances, which November has done. The cases on collateral attack that are cited ap- In the rehearing motion filed for by the State are cases to which the State pellant, it that was contended the Court was not party. disqualified. as then constituted was It is true argument. that the Court then the case for oral set Charter By reason of retirement of Associate requires caption only of all ordinances Werlein, two members of the Court Justice published. be inference One to be drawn as constituted the time at of the second stamp from thе on Ordinance is 65-1555 argument oral stock in owned no Standard that only compliance this showed with However, Oil Company Jersey. of New However, only Charter. this since the original opinion in the not case did showing any publication regard question disqualification, discuss ordinance, anything relating think we thought proper that the matter be dis- the inference be could also drawn opinion cussed in an on the motion. and, publication there was no further therefore, pub- requisite notice was not Article Sec. Constitution of Texas, provides as follows: “Sec. lished. judge No sit in shall case where- This raises a fact issue. may in he be interested, or where either the parties may him, be connected with ei- Appellant’s rehearing for motion over- ther affinity consanguinity, or within ruled. law, degree may prescribed such a rehearing Appellees’ for is over- he motion when have been shall counsel in the ruled. case.”
Constitution disqualification renders him judge incompetent to under (C [*] “There [*] [*] one in this case any of the other arise in act in the case and cannot be waived which does remembered must be parties. Hodges, 23 cited. It Chambers v. cases appellants, brought by the Indemnity (1859); Co. Postal Mutual this case members Ellis, only themselves as S.W.2d every other but for Cooperative, (1943). class, included member aas point is nearly The Texas case most alone, we reason For judge himself. Whitt, (Tex.Civ. Pahl v. S.W.2d judge the trial to hold compelled are App., hist.). El Paso no writ If try the case. disqualified *13 brought by a certain “in case men that plaintiff parties named each dividually, as of the Central members inter- justiciable has a brought this suit * * * Inc., Cooperative, Texas Electric What- suit, Judge. the so does in est the class, against aas the Central Texas Elec the hoped to be obtained ever benefits Cooperative, Inc.,” tric seeking and others brought this suit who plaintiff members corporation enjoin the prosecuting from benefit successful, the inure to would if cеrtain libel suits to recover certain affected as each is judge; the trial expended funds in the connection with suit, the so would results of the judge The suits. trial announced that he judge.” the trial was a member of the “Central Texas Elec court Undoubtedly the decision Co-op,” tric “public and received service reasoning quot- last the correct under from the Co-op County.” in Kerr long been it has that ed. The statement parties agreed to disqualifica the waive is corporation in a a held that stockholder judge tion of the if there was such dis the case wherein in a disqualified to sit qualification. appeal On the by the supported is party is a corporation raised, the being contention that judg the Corpus Secundum citations to Juris nullity. ment was a The court sustained Texas cases the but Jurisprudence, Texas contention, in opinion the stated: Templeton point. precisely in cited are words, “In (Tex.Sup.1889), other Cooperative if a 851 12 Giddings, S.W. v. col- money, assigned makes as its may promissory members receive note involved judge trial dividends in which the money form of or low- a “firm” of lateral payee ered rates electricity, member, for “firm” mem- thus such awas very bers are much the same situation note. corporation. stockholders in a Sapp, v. King cited, Texas case awas (1886), 2 573 S.W. 66 “It long has been held that a stock- the trial alleged that it was wherein case corporation disqualified holder in a is he had been disqualified judge was judge sit as in a corpo- trial wherein the defendant in causes between a counsel a party. ration is Judges § C.J.S. the same parties growing out and other 1051; p. Templeton Tex., Giddings, v. involving as this suit transaction 851; King Sapp., S.W. v. noted Supreme Court questions. The same 573; T.J., pp. 272, Also, S.W. did not disclose that the record rule, as a judge disqualified in the any pecuniary interest judge had sitting at the trial an against action had been he which of the cases outcome a mutual association of which he is а present in the employed,or that decision
member. Sovereign Camp. Woodmen of cases those case would determine Hale, World v. 56 Tex.Civ.App. stated: 539; 120 S.W. New York Life Co. Ins. Sides, v. Tex.Civ.App. 246, only in- “The law enumerates S.W. not neces- an interest stances which sarily pecuniary will disqualify a district river three miles away irrigation * * *
judge.
are where
purposes
These
he has been
Our
view is
cause,
counsel in the
possibility
or where either
direct injury tO'Judge
parties may
he connected with him
being deprived
Blalock on account of his
by affinity
consanguinity
right
within
up
set
irrigation
an
degree.
By
third
system
Rev.St. art. 1090.
of his
highly
own
too-
remote
naming
special
these
where
speculative
cases
him
disqualify
to sit
judge’s
interested,
feelings may be
though
the case.”
may
he
gain
or lose
event of
Wilcox,
In
Love
119Tex.
28 S.W.
suit,
the law
intended to
doubtless
2d 515
Court
(1930), the
stated:
limit all other cases
interest
pecuniary
as should be of a
nature. The
adoption
present
after
“Soon
must,
case,
judge
Constitution,
judge
the district
gain or
something,
lose
the value of
county
court
announced
Jefferson
may
be estimated.”
proceed
he
was embarrassed to-
personal
ad-
trial because ‘of his
interest
holding
that before
judge
bewill
appellants
questions
verse to
disqualified,
appear
it must
pecuni-
that a
objection
involved
this cause.’ The
*14
ary gain or
the
judge
loss
the
qualification
the
the
judge’s
to determine
necessarily
will
result from the outcome of
Supreme
the
cause
overruled
him,
the
suit
tried before
was re-
Bonner,
in
opinion by Judge
an
Court
Supreme
iterated
the
in
Court
Texas
stating:
Hidalgo County
Improvement
Water
Dist.
“
prohibits
judge
‘The
a
Blalock,
2
constitution
No. v.
157 Tex.
S.W.2d
may
in
in
he
be
sitting
from
a case which
(1957).
In this case the Court stated:
Const.1876,
V,
interested.
11.
art.
sec.
“If
question
his interest in the
is in-
“
statute is to
same effect.
‘The
the
direct, uncertain,
remote,
or
and the re-
R.S., art. 1090.
sult of the
necessarily
suit will not
sub-
ject
loss,
him
personal gain
to a
he
“
judge
‘The
of the learned
intеrest
disqualified
is not
to sit
the case.
however,
presiding,
simply
the
Wilcox,
Love v.
119 Tex.
28 S.W.2d
question involved, and
in the result
not
1484; City
70 A.L.R.
of Oak Cliff
of the
such dis-
suit. This was not
Gill,
ex
v. State
rel.
97 Tex.
79 S.
qualifying
him
prevent
interest would
Judge
party
W.
Blalock
not
is
cause,
trying the
author-
from
or would
suit,
to the main
judgment which
appointment
judge.
ize
special
of a
may be rendered
against
therein for or
“
purchases
the District
from which he
‘The presiding judge
having been
not
only
water would affect him
indirectly.
disqualified,
duty,
it was his
however
* *
*
embarrassing,
proceeded
with
by Grande at
inal
Blalock’s home is located
sion
“The most serious
porcion
raised
Crown of
which abutted on the Rio
time the
question
grant
fact
Spain.
that Judge
was made
for deci-
an
* * *
orig-
ton,
trial.
1 Greenl.Ev., 389.’ McFaddin v. Pres-
“
n
[*]
[*]
54 Tex.
426;
Taylor Williams,
&
Davis
T. C.
§
v.
Railway
State,
Co.
44 Tex.
26 Tex.
v.
Ryan,
523;
583;
differently,
Stated
it is suggested
Judge
“In
carefully
Brown’s
considered
it will be
opinion
decided
whether
this case
case
of Oak
individual,
Judge
per-
State,
Blalock has an
Cliff v.
79 S.W.
up
right
system
Courts,
sonal
to set
his own
it is
said: ‘In his treatise
wherеby
pump
he can
water from the
expresses
result of
Mr. Work
presented
“The
filed before
statement
thus:
upon
authorities
substantially
judge
trial court
the owner
disqualify
which will
interest
capital
the Bank of
immediate,
stock of
be direct
must
Savings
Italy
Trust &
Asso-
National
Page
and remote.”
contingent
Corpo-
ciation. Had
Transamerica
1068.’
S.W.
orig-
party
said
ration been made a
re-
the Texas cases
reviewing
“After
action,
doubt-
would
inal
the situation
contrary con-
sustaining a
upon as
lied
directly covered
have been one
less
continues
clusion,
opinion
Brown’s
Judge
the Code
provisions
section 170 of
apparent
‘It
the statement:
amended.
Civil
as above
Procedure
case
that in each
these authorities
that,
the rela-
But
fact
whatever
di-
presiding judge
interest of
alleged
between
tionship thus
exist
by the
immediately affected
rectly and
Corporation and Bank of
Transamerica
im-
acted
judgment that he entered—it
Italy
Savings Associa-
Trust &
National
mediately upon
subject
without
be,
corporation
might
former
tion
authority
interposition
—and
hence
action and
party
was not a
to said
laid
strictly
rule
each
within the
came
the intendment of
within
does
come
by Mr. Work.’
down
think
said
Neither do we
action.
presented
thus
could
situation as
“Finally,
opinion defi-
Judge Brown’s
disqualification
constitute a
event
nitely
approves
decla-
positively
stated
rule above
under
well-settled
re
(In
case
ration in a cited New York
disqualifying interest
alleged
1, Am.Rep. 88)
that the
Ryers, N.Y.
di-
appear
must
to be an immediate
judicial
of-
true rule is ‘that where
litiga-
rect
in the outcome of
interest
ficer has
direct an interest
not so
corpo-
in some
tion. To be a stockholder
*15
as that
result must
cause or matter
the
not be
and could
n necessarilyaffect him to his
ration which is not
personal
any
by
* *
cannot
party
*
made a
action
pecuniary
gain,
loss or
to
held
amount
reasoning
stretch of
may
then he
sit.’
tо do
disqualification,
a
and we are cited
“In
the court’s de-
accordance with
authority
On the
so holds.
no
which
that
rightly
cision
the
con-
Constitution,
only within our
contrary,
cases not
the
strued,
him,
disqualify
does not
the Chief
jurisdictions
ex-
but
have
own
other
participated in
has
the decision
Justice
pressly
no dis-
that in such cases
held
questions
of all
in
other
this case save
Bank
qualification
Sav.
exists. Central
disqualification.”
relating
that
to his
438, 444,
Lake,
of Oakland v.
201 Cal.
521;
Superior Court
v.
257 P.
Favorite
directly
point
by
A case
in
was decided
261,
County,
184
181 Cal.
Riverside
Supreme
the
Court of California.
In Cen-
Fidelity
290;
15,
v.
8
Rooker
P.
A.L.R.
Court,
tral
Ry.
Pac.
Superior
Co. v.
211 Cal.
413,
Company,
44 S.Ct.
Trust
263 U.S.
706,
institution
action and
in the
pany
“interest” in this case
has an
continued to be thereafter
stockholder
is
in
used
sense that
word “interest”
corporation
Transamerica
known as
provision
under discus-
Corporation,
in the
Constitutional
asserted
companies
sion. The
quo
interested in
warranto,
are
ture of a
after securing the
by
case,
he
required
determined
this
permission
but
of the District Judge,
company
neither
necessarily
subject
proceeded
bewill
to trial without
the actual
pecuniary
by
to a
gain
loss or
participation
the outcome
of the
Attorney,
District
company
of this suit. Neither
in-
attempted
appeal
has an
judgment dismissing
different
terest
from other
Attorney
members of
without
cause
the District
public
subject
in the
matter
joining
this
appeal, this Court dismissed
suit,
is,
ques-
whether
appeal
for
jurisdiction stating
want of
validily
by
tion has been
annexed
that it
jurisdiction
by
no
appeal
had
of an
Pasadena,
subject
private
alone,
or is
to the exclusive
relators
and that, had
jurisdiction
annexation
the City
participated actively
trial,
State
by
and has been annexed in
the judgment was final
it
as to
since the
City.
petition
In the
appeal.
which this
State did not
ex
rel. Steele v.
suit went
trial,
special
Heath,
no
relief was
(Tex.Civ.App.,
This
originally brought
relator,
suit was
the Company
joined
suit as a
State of Texas on the relation of the
would have
been bound
outcome
Orig-
suit,
Houston.
In
Amended
parent
the First
company,
as is its
Stand
Petition,
inal
Refining
Humble Oil &
Com-
Company
Jersey.
ard Oil
of New
Wil
pany appeared
White,
as an additional
relator.
(Tex.Civ.
liams
v.
S.W.2d 278
This
a quo
proceeding.
warranto
App.,
Such
ref.);
San Antonio
error
an action is one
which the State acts
of Ft.
v. Taylor,
Worth
protect
pub-
good
itself
S.W.2d 792 (1961).
is,
times,
generally,
lic
although
suit
at
law,
ap
the state
brought
the ben-
at
instance of
pears that neither
nor
Humble Oil
Standard
may
private
efit of a
individual who
Oil
has
more interest
this law suit
special
Staples
interest
matter.
general pub
than
other member of
State,
(1922).
245 S.W.
lic,
equally
and that each
bound
*16
gen
all other
decision with
members of
responsible
Although
may
relator
be
public.
eral
It follows that neither Chief
pro-
setting
quo
warranto
in motion
Bell nor Associate
Werlein
Justice
Justice
information,
an
the conduct
ceeding
had an interest
in this law suit different
prosecution
continued
cause
general
from that
members
State,
under the exclusive control of
public.
case,
such
firmly
In
it is
estab
proceeding may
brought by
lished that neither
a trial
nor mem
judge
Denison
State without a relator.
appellate
disqualified.
ber of an
bench
State,
Aus-
(Tex.Civ.App.,
S.W.2d
Peacock,
of Dallas v.
Tex.
tin
ex
Bennett
ref.);
error
rel.
(1895);
S.W. 220
Oak Cliff v.
Dist.,
v. Clarendon Ind.
156 Tex.
School
State,
(1904);
97 Tex.
S.W.
542, 298
111 (1957).
S.W.2d
County,
Hubbard v. Hamilton
relators,
joined
the District
Scott,
Where
(1924);