Opinion issued August 20, 2015




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-14-00932-CV
                         ———————————
                CITY OF RICHMOND, TEXAS, Appellant

                                   V.

      PECAN GROVE MUNICIPAL UTILITY DISTRICT, Appellee


                 On Appeal from the 268th District Court
                        Fort Bend County, Texas
                  Trial Court Case No. 14-DCV-217359


                       MEMORANDUM OPINION
      In this interlocutory appeal, 1 appellant, the City of Richmond, Texas, (the

“City”), challenges the trial court’s order denying its plea to the jurisdiction in the

suit of appellee, Pecan Grove Municipal Utility District (the “District”), against the

City for judgment declaring that the City’s annexation of certain property is void.2

In its sole issue, the City contends that the trial court lacks subject matter

jurisdiction over the District’s suit.

      We vacate the order and dismiss the case.

                                         Background

      In its original petition, the District alleges that the City, as a home-rule

municipality, is authorized to annex land within its extraterritorial jurisdiction only

if the land is contiguous with its boundary. Geraldine Abb-Ivey petitioned the City

to annex a 5.5-acre tract of land (the “property”) owned by her and located at 1717

FM 359, asserting that the property was contiguous with the City’s boundary.

After the City determined that the property was not actually contiguous with its

boundary, it annexed a 10-foot-wide, 0.286-acre, strip of land (the “strip”), owned

by the Texas Department of Transportation (“TxDOT”), in order to connect the

property to its boundary.        The District asserted that the City is statutorily


1
      See TEX. CIV. PRAC. & REM CODE ANN. §.51.014(a)(8) (Vernon 2015)
      (authorizing interlocutory appeal from order denying plea to jurisdiction by
      governmental unit).
2
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (Vernon 2015).


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prohibited from annexing land that is less than 1,000 feet wide at its narrowest

point without a petition for annexation by the landowner 3 and TxDOT did not

petition for annexation.      The District sought a declaration that the City’s

annexation of both the strip and the property is void.

      The City filed an answer, generally denying the allegations, and a plea to the

jurisdiction, asserting that it was immune from suit and liability. The City asserted

that the District’s suit for declaratory relief is barred by governmental immunity

and a “quo warranto proceeding is required to set aside an annexation.” The City

argued that the District lacked standing to bring its suit because it “cannot show a

particularized injury due to, or any legal rights it may have that are or will be

affected by, the City’s annexation.” It further asserted that it had annexed the strip

only after receiving from TxDOT a “letter of no objection,” which serves as a

petition for annexation.     Finally, the City specially excepted to the District’s

petition on the ground that it “did not allege a valid waiver of . . . immunity” or

“any basis to support [the District’s] standing to bring this suit.”

      In its response to the City’s plea to the jurisdiction, the District argued that

the City’s immunity is statutorily waived because the District seeks a declaration

construing and invalidating an ordinance, 4 the City’s annexation of the strip is void


3
      See TEX. LOC. GOV’T CODE ANN. § 43.054 (Vernon 2008).
4
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (“Uniform Declaratory
      Judgments Act”).

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because TxDOT did not petition for annexation, and the City’s annexation of the

property is void because the property is not contiguous with the City’s territorial

limit without the strip. And it argued that because the District is “challenging the

City’s attempted annexation” on the ground that it is “void,” and “not voidable,” a

quo warranto proceeding is not required. The District further argued that it has

standing to challenge the annexation because it is a “competing potential service

provider to the annexed tracts” and an “affected sales tax collector.” And it

asserted that the annexation expanded the City’s extra-territorial jurisdiction,

which will require it to seek additional City approval for construction projects in

other areas.

          To its response, the District attached Abb-Ivey’s Petition for Annexation; an

exhibit depicting the location of the annexed tracts; TxDOT’s June 13, 2014 letter

to the City stating that it had no objection to annexation of the strip; and the City’s

resolution and ordinance annexing the strip and the property. The District also

attached the affidavit of its engineer, Scott C. Saenger, who testified that the

property was “not contiguous with or adjacent to the city limits.” And it attached

the affidavit of G.E. Kluppel, the secretary of its board of directors, who testified

that the District was a “potential provider of utility services” to the property and

the “City’s annexation of this land preclude[d] the District from providing utilities

to it.”



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      In its reply, the City asserted that the District had “suffered no harm due to

annexation,” and, through its correspondence with the City and the State of Texas,

the District had established that it had “no intention of providing services to any

development of the [p]roperty.” The City also asserted that the parties had agreed

to share in certain sales tax revenues under their 2007 Strategic Partnership

Agreement (“SPA”), which does not include the property or any tax revenues

generated by the development of the property. The City attached to its reply the

District’s February 22, 2013 letter to the Texas Department of Housing and

Community Affairs, stating that the District “[did] not know where water and

sewer services would come from” to service the property and “[did] not have extra

capacity to provide water or sewer service to the proposed development” on the

property. And it attached the SPA and a map of the area governed by the SPA.

The City also attached the affidavit of Brad Shodek, a professional land surveyor,

and vicinity maps showing that the property has been located within the City’s

extra-territorial jurisdiction since 1985.

      After a hearing, the trial court denied the City’s plea to the jurisdiction.

                                 Standard of Review

      We review de novo a trial court’s ruling on a jurisdictional plea. See Ben

Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions

Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Hous. v.



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Vallejo, 371 S.W.3d 499, 501 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of

subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004); Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). A plea to the jurisdiction may be utilized to challenge

whether the plaintiff has met its burden of alleging jurisdictional facts or to

challenge the existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).

       When a plea to the jurisdiction challenges the pleadings, we determine

whether the pleader has alleged facts that affirmatively demonstrate the trial

court’s jurisdiction.   Id.   We construe the pleadings liberally in favor of the

pleader, accept all factual allegations as true, and look to the pleader’s intent.

Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012).

       Review of a plea challenging the existence of jurisdictional facts mirrors that

of a matter-of-law summary-judgment motion. Mission Consol. Indep. Sch. Dist.

v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Hous. v. Guthrie, 332 S.W.3d

578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“[T]his standard

generally mirrors that of a summary judgment under Texas Rule of Civil Procedure

166a(c). . . .   By requiring the [political subdivision] to meet the summary

judgment standard of proof . . . , we protect the plaintiffs from having to put on



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their case simply to establish jurisdiction.”); see also TEX. R. CIV. P. 166a(c). A

court may consider evidence as necessary to resolve a dispute over the

jurisdictional facts, even if the evidence “implicates both the subject matter

jurisdiction of the court and the merits of the case.” Miranda, 133 S.W.3d at 226.

We take as true all evidence favorable to the nonmovant and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 228.

If the defendant meets its burden to establish that the trial court lacks jurisdiction,

the plaintiff is then required to show that there is a disputed material fact regarding

the jurisdictional issue. Id. at 227–28. If the evidence raises a fact issue regarding

jurisdiction, the plea cannot be granted and a fact finder must resolve the issue. Id.

On the other hand, if the evidence is undisputed or fails to raise a fact issue, the

plea must be determined as a matter of law. Id. at 228; Garcia, 372 S.W.3d at 635.

                                      Standing

      In its sole issue, the City argues that the trial court erred in denying its plea

to the jurisdiction because the District does not have standing to challenge the

annexation, the annexation of the property was lawful, and “[o]nly the Attorney

General may challenge the annexation.”

      “A request for declaratory relief alone does not establish jurisdiction”;

rather, “the Uniform Declaratory Judgments Act . . . is ‘merely a procedural device

for deciding cases already within a court’s jurisdiction.’” Chenault v. Phillips, 914



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S.W.2d 140, 141 (Tex. 1996) (quoting State v. Morales, 869 S.W.2d 941, 947

(Tex. 1994), and citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011).

Standing is implicit in the concept of subject-matter jurisdiction, and subject-

matter jurisdiction is essential to the authority of a court to decide a case. Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Thus,

standing is never presumed and cannot be waived. Id. at 443–44.

      The test for standing requires that there be a real controversy between the

parties that will actually be determined by the judicial declaration sought. Nootsie,

Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).

Without a breach of a legal right belonging to the plaintiff, no cause of action can

accrue to its benefit. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976). A party

has standing to sue if: (1) it has sustained, or is immediately in danger of

sustaining, some direct injury as a result of the wrongful act of which it complains;

(2) has a direct relationship between the alleged injury and claim sought to be

adjudicated; (3) has an individual stake in the controversy; (4) the challenged

action has caused it some injury in fact, either economic, recreational,

environmental, or otherwise; or (5) it is an appropriate party to assert the public’s

interest in the matter as well as its own interest. City of Bells v. Greater Texoma

Util. Auth., 790 S.W.2d 6, 11 (Tex. App.—Dallas 1990, writ denied); Billy B., Inc.




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v. Bd. of Trustees, 717 S.W.2d 156, 158 (Tex. App.—Houston [1st Dist.] 1986, no

writ).

         We first address the City’s assertion that “this annexation may only be

challenged through quo warranto proceedings” brought by the attorney general. A

writ of quo warranto is an extraordinary remedy available to challenge a city’s

authority and its right to act. See Village of Lakeway v. Lakeway Mun. Util. Dist.

No. 1, 657 S.W.2d 912, 915 (Tex. App.—Austin 1983, writ ref’d n.r.e.). Quo

warranto proceedings are brought in the name of the State by the attorney general

or a district or county attorney. See TEX. CIV. PRAC. & REM. CODE ANN. § 66.002

(Vernon 2008); Walton v. City of Midland, 287 S.W.3d 97, 101 (Tex. App.—

Eastland 2009, pet. denied). In a quo warranto proceeding, the State acts to protect

itself and the public good, although it may bring a proceeding “at the instance of,

and for the benefit of, a private individual with a special interest.” Midland, 287

S.W.3d at 101.

         Whether a party other than the State has standing to challenge an annexation

turns on whether the challenge complains of a violation of statutory procedure or

attacks a city’s authority to annex the area at issue.      City of San Antonio v.

Summerglen Prop. Owners Ass’n, Inc., 185 S.W.3d 74, 83 (Tex. App.—San

Antonio 2005, pet. denied); see also Save Our Springs Alliance, Inc. v. Lazy Nine

Mun. Util. Dist., 198 S.W.3d 300, 310–11 (Tex. App.—Texarkana 2006, pet.



                                           9
denied) (distinguishing “voidable” acts based on procedural irregularities, which

must be challenged by quo warranto proceeding, from “void” acts, which may be

challenged through other legal proceedings). A quo warranto proceeding is the

“only proper method” to attack the validity of a city’s annexation of territory,

“unless the annexation is wholly void.” Alexander Oil Co. v. City of Seguin, 825

S.W.2d 434, 436 (Tex. 1991); Guthrie, 332 S.W.3d at 595–56.

      Procedural irregularities in the exercise of a city’s annexation power do not

render an annexation void, but may render an annexation voidable. City of Port

Isabel v. Pinnell, 161 S.W.3d 233, 239 (Tex. App.—Corpus Christi 2005, no pet.);

City of Hous. v. Harris Cnty. Eastex Oaks Water & Sewer Dist., 438 S.W.2d 941,

944 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.) (holding

proceedings constituting irregular exercise of power not void). A quo warranto

suit by the State on behalf of its citizens is the only proper method to challenge

procedural irregularities “such as a lack of [statutory] notice, [in]adequacy of a

service plan, lack of a quorum for a hearing, and other defects in the process of

adopting an annexation ordinance.” Town of Fairview v. Lawler, 252 S.W.3d 853,

856 (Tex. App.—Dallas 2008, no pet.).

      A party other than the State may challenge an annexation as “void” on the

ground that a municipality has exceeded its authority, delegated to it by the

legislature, by attempting to (1) annex territory exceeding the statutory municipal



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size limits; (2) annex areas included in the extraterritorial jurisdiction of another

city; (3) annex areas not contiguous with current city limits; or (4) annex an area

with a boundary description that does not “close.” See Alexander Oil, 825 S.W.2d

at 438 (citations omitted); see also Laidlaw Waste Sys., 904 S.W.2d at 658

(holding private party may collaterally attack annexation exceeding the annexation

authority granted by statute); City of Balch Springs, Tex. v. Lucas, 101 S.W.3d

116, 120 (Tex. App.—Dallas 2002, no pet.) (stating private cause of action allowed

to challenge character or size of land annexed but not deficiencies in procedure of

adopting annexation ordinance).

      In support of its assertion that the District’s challenge may only be asserted

through a quo warranto proceeding, the City relies on Lucas, in which certain

landowners petitioned for declaratory relief on the ground that the city was

attempting to annex their land without complying with the specific provisions of a

statutorily mandated municipal annexation plan. 101 S.W.3d at 119, 122; see TEX.

LOC. GOV’T CODE ANN. § 43.052 (Vernon 2008). The court held that because the

statutory provisions at issue did not limit the area or type of land that the city could

annex, but instead prescribed a planning process, the actions about which the

landowners complained were procedural. Lucas, 101 S.W.3d at 121. Thus, even if

the alleged improprieties were proven, the proposed annexation would be voidable,




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not void. Id. at 122. And the landowners lacked standing to bring a private cause

of action. Id.

       In support of its assertion that a quo warranto proceeding is not required to

challenge the City’s annexation as void on the ground that the City exceeded its

authority to annex, the District relies on City of Missouri City v. State ex rel. City

of Alvin, 123 S.W.3d 606, 617 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied). In Missouri City, the State, on behalf of the City of Alvin, filed a quo

warranto action against Missouri City, alleging that it had illegally annexed land in

Alvin’s territorial limits and violated statutory law by extending its territory into

Alvin’s extra-territorial jurisdiction without consent and annexing a strip of land

less than 1000 feet wide at its narrowest point. 123 S.W.3d at 608–09, 611; see

TEX. LOC. GOV’T CODE ANN. §§ 42.041, 43.0545 (Vernon 2008). Alvin filed a

petition in intervention seeking declaratory relief. Missouri City, 123 S.W.3d at

610. Missouri City asserted that a quo warranto proceeding was required to

challenge the annexation and Alvin could not maintain the action on its own. Id. at

610–11. The court, after noting that Alvin’s issues were “identical to those in the

quo warranto action,” held that Alvin “could have brought the challenge in its own

name” as a “private challenge to annexation is permitted when [an] annexation

ordinance is void because [a] municipality exceeded its authority to annex.” Id. at

617.



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      Here, like Alvin in Missouri City, the District asserts that the City’s

annexation of the strip and property is void based on violations of statutory law

that limit the area and type of land that the City may annex. See TEX. LOC. GOV’T

CODE ANN. §§ 42.041 (municipality may not annex area in another municipality’s

extra-territorial jurisdiction without written consent), 43.0545 (prohibiting

annexation of area less than 1000 feet wide at narrowest point). Thus, the District

may challenge the City’s annexation in a private action. See Missouri City, 123

S.W.3d at 617.

      However, as the City further asserted, the District, in order to establish

standing, must have suffered a particular burden or injury from the City’s

annexation. See Pinnell, 161 S.W.3d at 238. The District argues that it suffered a

particularized burden from the City’s annexation of the property because the

District was a “potential provider” of utility services to the property and the City’s

annexation “removes land that could have been served by the District.” The

evidence shows, however, that the District admitted in its February 22, 2013 letter

to the Texas Department of Housing and Community Affairs that it “[did] not

know where water and sewer services would come from” to service the property

and “[did] not have extra capacity to provide water or sewer service to the

proposed development” on the property. Thus, the City’s evidence conclusively




                                         13
establishes that the District has not suffered an injury based on being a “competing

potential service provider to the annexed tracts.”

      The District next argues that it was harmed because it and the City have an

“agreement to share in the sales tax revenues collected within the City’s [extra-

territorial jurisdiction] in and around the District’s boundaries,” the City’s

annexation removes the property from the City’s extra-territorial jurisdiction,

“prevents” it from coming under the agreement, and “depriv[es] the District of this

potential sales tax revenue.”     However, the evidence shows that the parties’

agreement, the SPA, applies to the specific territory delineated on the map, which

does not include the property. Thus, the City’s evidence conclusively establishes

that its annexation of the property did not result in an injury to the District in the

form of lost sales tax revenues under the SPA.

      Finally, the District asserts that it is required to obtain approval from the

City to construct projects within the City’s extra-territorial jurisdiction and because

the City’s annexation “affects the location” of its extra-territorial jurisdiction, it

affects the area in which such approvals are required. A special burden does not

exist, however, if, as here, a claimant merely alleges the ordinary consequences of

annexation that burden the public in general. See Sunchase Capital Grp., Inc. v.

City of Crandall, 69 S.W.3d 594, 597 (Tex. App.—Tyler 2001, no pet.).




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      We conclude that the City’s evidence conclusively establishes that the

District has not suffered a particular burden or injury from the City’s annexation of

the strip and property. Accordingly, we hold that the District lacks standing to

challenge the annexation and the trial court erred in denying the City’s plea to the

jurisdiction.

      We sustain the City’s sole issue.

                                    Conclusion

      We vacate the trial court’s order denying the City’s plea to the jurisdiction

and dismiss the case. See TEX. R. APP. P. 43.2; Lucas, 101 S.W.3d at 122.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.




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