LAIDLAW WASTE SYSTEMS (DALLAS), INC., Petitioner v. CITY OF WILMER, Texas, Respondent.
No. 94-0566.
Supreme Court of Texas.
June 29, 1995.
Rehearing Overruled Sept. 14, 1995.
904 S.W.2d 656
Argued Feb. 8, 1995.
Henry W. Fielder and J. Patrick Atkins, Waco, for respondent.
OWEN, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, HECHT, GAMMAGE, ENOCH and SPECTOR, Justices, join.
In this case we must determine whether a Type A general-law municipality may annex a contiguous area pursuant to
I
In 1990, Laidlaw received a permit to construct and operate a municipal solid waste landfill on property adjacent to Wilmer. The City subsequently annexed approximately 205 acres of land in its extraterritorial jurisdiction, including a portion of the site of the proposed landfill. The temporary zoning designation for the annexed land does not include operation of a landfill as a permissible use. Laidlaw initiated a declaratory judgment action, challenging the validity of the annexation on several fronts.
The trial court denied the City‘s motion and granted Laidlaw‘s motion for summary judgment, declaring the annexation void. The court of appeals reversed and rendered judgment in favor of the City. 890 S.W.2d 459.
II
The first question we must resolve is whether Laidlaw has standing to challenge the annexation. Generally a quo warranto proceeding is the only appropriate mechanism for challenging the validity of an annexation. Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex.1991). The City contends that as a private party, Laidlaw lacks standing. However, a private party may collaterally attack an annexation that exceeds the annexation authority granted by statute. See id. at 436-38. Laidlaw‘s argument is that the City‘s attempted annexation is wholly void because it exceeds the statutory area limitations. Laidlaw does have standing to attack the annexation on this ground. However, Laidlaw has no standing to challenge the annexation on procedural grounds, such as alleged failures to meet the notice and signature requirements, and accordingly, we do not consider those procedural challenges.
III
In resolving this case, it is crucial to understand the different classifications of municipalities in the Local Government Code. Municipalities in Texas may be divided into three broad categories: general-law, special-law, and home rule. Laws expressly applicable to one category are not applicable to others. See Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 285 (1948). The Local Government Code further subdivides general-law municipalities into three types: A, B, and C. See
For Type B municipalities, the application is clear.
In Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981), we held:
It is a rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. Likewise, we believe every word excluded from a statute must also be presumed to have been excluded for a purpose.
Id. at 540 (citations omitted). Laidlaw‘s construction of the statute in this case violates both of these basic precepts. If, as Laidlaw argues, the territorial limits in section 5.901 apply automatically to any annexation by a general-law municipality,
On the contrary, an examination of the statute as a whole reveals that the Legislature frequently treats Type A municipalities differently from Type B municipalities. See, e.g.,
Laidlaw relies on lower court opinions in City of Northlake v. East Justin Joint Venture and Sentry Environmental, 873 S.W.2d 413 (Tex.App.--Fort Worth 1994, writ denied) and City of Deer Park v. State ex rel. Shell Oil Co., 259 S.W.2d 284 (Tex.Civ.App.--Waco 1953), aff‘d on other grounds, 154 Tex. 174, 275 S.W.2d 77 (1955). In Deer Park, the court of appeals concluded that the city was governed by the limits applicable to Type B municipalities. The court went on to note in dicta that the territorial limits would also apply to a Type A municipality. The court of appeals reasoned that allowing unlimited annexation would render the territorial limits “vain, futile and meaningless.” Deer Park, 259 S.W.2d at 287. In reviewing Deer Park, our Court expressly declined to reach the issue of whether the territorial limits apply to annexation by a Type A municipality. Deer Park, 275 S.W.2d at 82.
Moreover, the Deer Park analysis is flawed in assuming that annexation would be unlimited in the absence of territorial restrictions.
Northlake involved similar facts. As in Deer Park, the court of appeals first concluded that Northlake was a Type B municipality, but went on to hold that the territorial limits would apply to a Type A municipality as well. Northlake, 873 S.W.2d at 419. The court explained the absence of a territorial restriction in
Neither Deer Park nor Northlake offers a convincing rationale for disregarding the language of the statute. Under the terms of
IV.
Laidlaw also argues that the court of appeals erred in rendering judgment for the City. Specifically, Laidlaw contends that it raised fact issues as to (1) whether the metes and bounds description of the annexed property was proper, (2) whether the annexed property exceeded one-half mile in width, and (3) whether the City complied with the
In its motion for summary judgment, the City presented evidence that its metes and bounds description was proper, that the annexed property was less than one-half mile in width, and that it complied with the
Generally, pleadings are not competent evidence, even if sworn or verified. Hidalgo v. Surety Sav. & Loan Ass‘n, 462 S.W.2d 540, 545 (Tex.1971). In Hidalgo, we recognized that some jurisdictions and at least one commentator would allow sworn pleadings to be used as proof in a summary judgment proceeding if the pleadings set out in “great detail” the essential facts and were properly supported by a sworn statement. 462 S.W.2d at 544-45, (citing Central Bank & Trust Co. v. Davis, 102 So.2d 600 (Fla.1958), and 6 MOORE‘S FEDERAL PRACTICE 2176 (2d. ed. 1960)). We noted that a Texas court of appeals had held to this effect. Pine v. Gibraltar Sav. Ass‘n, 427 S.W.2d 714, 718 (Tex.Civ.App.--Houston [1st Dist.] 1968, no writ). Our Court concluded, however:
On balance, we are convinced that orderly judicial administration will be better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment evidence.... If we took the opposite course, we would be confronted with constant problems concerning whether there was an adequate showing that the person making oath was personally acquainted with the facts and was competent to testify to the facts alleged.
We do not revisit this holding today in light of the fact that the sworn pleadings relied upon by Laidlaw do not otherwise meet the requirements of Rule 166a. TEX.R.CIV.P. 166a. (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.“) The statements in the petition are conclusory. They do not set forth facts. The sworn statement of one Larry Conwell states only “that he is personally familiar” with the following “facts“: “[t]he area proposed for annexation by defendant exceeds the statutory maximum one-half mile limitation,” and that the “boundary described by the metes and bounds contained in defendant‘s proposed ordinance does not close.” These conclusory averments would be insufficient even if set out in a separate affidavit. There is no indication that Larry Conwell is competent to testify as to either of these matters. Laidlaw also submitted a sworn statement from one Fran Stall. She verified certain allegations relating to Laidlaw‘s contention that the City failed to comply with the Open Meetings Act. With one arguable exception (the date of the public hearings), the statements she verified are likewise conclusory, and there has been no showing she is competent to testify to the matters set out in the petition. In the absence of any competent summary judgment evidence, the court of appeals was correct in rendering judgment for the City.
*
For the reasons set forth herein, the judgment of the court of appeals is affirmed.
GONZALEZ, Justice, joined by CORNYN, Justice, dissenting.
It is undisputed that the City of Wilmer is a Type A general law municipality with less than 5,000 inhabitants. It is also undisputed that the addition of the annexed territory will cause the City to exceed the four square mile surface area limit applicable to its incorporation. See
Admittedly, when sections 5.901 and 43.024 of the Local Government are considered separately, it appears that section 5.901 applies only to incorporations, and section 43.024 applies only to annexations. However, considering the statutes together, in light of their legislative history and that of their predecessor statutes, I cannot agree with the Court‘s interpretation. I disagree that the Legislature intentionally omitted language from
For one thing, the statutes governing annexations by Type A and Type B municipalities were enacted at different times. The Legislature enacted article 974 of the Revised Civil Statutes (now codified at
The strongest argument that the Legislature intentionally omitted language from a statute is when the statute including the disputed language was enacted earlier in time. The enactment of a statute including certain language after the enactment of a statute which does not include the language is at best an ambiguous indication of the Legislature‘s intent. The Legislature‘s lack of cross-references in article 974 and its express incorporation of article 971‘s restrictions in article 1135 is more indicative of the relative timing of the statutes’ enactments than of legislative intent. See City of Northlake, 873 S.W.2d at 419.
I find persuasive the court‘s analysis in City of Deer Park. In that case, the City of Deer Park attempted to convert from a Type B municipality to a Type A municipality and to annex territory belonging to Shell Oil Company. City of Deer Park, 259 S.W.2d at 285-86. The court held that Deer Park‘s attempt to convert to a Type A municipality was void. Id. at 286. Moreover, because Deer Park was still a Type B municipality, article 1135 (now
[I]t is quite clear to us that the intended purpose and legal effect of Art. 971 [now
TEX.LOC.GOV‘T CODE § 5.901 ] was to prohibit any city or town in this State from thereafter including within its corporate limits a superficial area [exceeding the area limits of section 5.901]. If such was not the intended purpose and effect of such legislation and if any city or town, after its original incorporation, can continue by successive annexations to increase its superficial area indefinitely without regard to the number of its inhabitants, then the enactment ... was vain, futile and meaningless.
259 S.W.2d at 287 (emphasis added). Allowing a municipality to circumvent the requirements of section 5.901 through subsequent annexations frustrates section 5.901‘s purpose and renders it a nullity. Under the Court‘s interpretation of sections 5.901 and 43.024, a municipality, even if it was not growing in population, could gradually expand its boundaries to encompass an unlimited surface area.
Furthermore, the Court errs in failing to give effect to the Deer Park construction of sections 5.901 and 43.024 when determining legislative intent. See Coastal Indus. Water Auth. v. Trinity Portland Cement Div., Gen. Portland Cement Co., 563 S.W.2d 916, 918 (Tex.1978); Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex.1963); Rail v. Morriss, 95 S.W.2d 738, 739 (Tex.Civ.App.--San Antonio 1936, writ ref‘d). If a judicial interpretation of a statute is “unacceptable to the Legislature, a simple remedy is available by the process of
A Type A municipality should not be able to exceed the surface area limits applicable to its original incorporation through subsequent annexations. Because the addition of the annexed territory will cause the City of Wilmer to exceed the four square mile size limit applicable to its incorporation, I would reverse the judgment of the court of appeals and render judgment that the challenged annexation ordinances are void.