                          NUMBER 13-08-00105-CV

                          COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG


RYAN SERVICES, INCORPORATED
AND TIMOTHY RYAN,                                                          Appellants,

                                          v.

PHILLIP SPENRATH, ED ERWIN,
KENNY MARTIN, ROBERT BOONE,
ANTHONY COLLINS, GLORIA HARRIS,
CINDY CERNY, AND THE CITY OF
EL CAMPO, TEXAS,                                                            Appellees.


On appeal from the 329th District Court of Wharton, County, Texas.


                        MEMORANDUM OPINION

              Before Justices Yañez, Rodriguez, and Vela
               Memorandum Opinion by Justice Yañez

    Through a verified petition, application for temporary restraining order, and petition
for writ of mandamus filed in the trial court, appellants, Ryan Services, Inc. and Timothy

Ryan, sought to compel the City of El Campo to either revoke three annexation ordinances

or submit them to a city-wide vote. The trial court granted a plea to the jurisdiction filed by

appellees, Phillip Spenrath, Ed Erwin, Kenny Martin, Robert Boone, Anthony Collins, Gloria

Harris, Cindy Cerny, and the City of El Campo, Texas, and this appeal ensued. This Court

has previously considered and denied a petition for writ of mandamus concerning this

case. See In re Ryan, No. 13-08-179-CV, 2008 Tex. App. LEXIS 2956, at *9 (Tex.

App.–Corpus Christi Apr. 18, 2008, orig. proceeding [mand. denied]) (mem. op.).1

         We affirm the order of the trial court granting the plea to the jurisdiction.

                                                I. Background

         The City of El Campo, acting through its City Council, issued four annexation

ordinances on December 11, 2007. On January 10, 2008, pursuant to section 7.03 of the

El Campo City Charter, citizens of the City filed three petitions asking the City Council to

reconsider three of the annexation ordinances and, if the City Council chose not to repeal

them, to submit the ordinances to a popular referendum vote. Section 7.03 of the City

Charter, entitled “Referendum,” provides that:



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          According to the petition for writ of m andam us, the City of El Cam po was holding an election on May
10, 2008, to, inter alia, fill three at-large seats on its City Council. The candidates for that election included
Ryan, appellees Phillip Spenrath and Kenneth Martin, who currently serve on the City Council, and non-parties
Jim m y Roppolo, Otha Edison, Henry Dornak, Jr., and Richard Young. Pursuant to the City Charter, only
residents of the City m ay run for a City Council seat, only City residents m ay vote in that election, and the three
candidates who received the m ost votes in the election would be elected to the City Council. Relator, Ryan,
contended that the annexation ordinances were effectively suspended because the City Council failed to
repeal them or subm it them to popular vote, but nevertheless, a candidate who resided in the annexed area,
Jim m y Roppolo, rem ained on the ballot as a candidate for City Council in the May 10, 2008 election, and
voters from the annexed area would be able to vote in that election. Relator asked this Court to com pel
respondents to follow the provisions in section 7.03 of the City Charter before the May 10, 2008, election. This
Court denied the petition.



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       Qualified voters of the City of El Campo may require that any ordinance or
       resolution passed by the City Council be submitted to the voters of the city
       for approval or disapproval, by submitting a petition for this purpose within
       thirty (30) days after final passage of said ordinance or resolution, or within
       thirty (30) days after its publication . . . . Thereupon the City Council shall
       immediately reconsider such ordinance or resolution and; if it does not
       entirely repeal the same, shall submit it to popular vote as provided in section
       6.07 of this Charter. Pending the holding of such election, such ordinance
       or resolution shall be suspended from taking effect and shall not later take
       effect unless a majority of the qualified voters voting thereon at such election
       shall vote in favor thereof.

Taking the position that annexation ordinances were not subject to the referendum

provision of the City Charter, the City Council took no action on the three petitions.

       Ryan and Ryan Services, Inc., brought suit against the City and City Council in the

329th Judicial District Court of Wharton County, Texas, seeking declaratory, injunctive, and

mandamus relief. They alleged that the El Campo City Charter is valid under Texas law,

the petitions regarding the ordinances complied with the City Charter, and the annexation

ordinances were suspended in accordance with the Charter. In short, Ryan and Ryan

Services, Inc. alleged that the referendum provision in the Charter required the City to

either repeal the ordinances or call a popular election on their validity, and the ordinances

were not effective unless approved by a majority of the qualified voters at an election.

       The City and Council members answered this suit and filed a plea to the jurisdiction

on grounds that Ryan and Ryan Services, Inc. did not have standing to bring suit and the

trial court, accordingly, lacked jurisdiction. The City and Council alleged that individual

property owners cannot challenge irregularities in a municipality’s annexation; rather, such

challenges may be brought only through a quo warranto proceeding. The trial court

granted the plea and dismissed Ryan and Ryan Services, Inc.’s claims without prejudice.

This appeal ensued.

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       Through three issues, appellants contend that: (1) the trial court erred in granting

the plea to the jurisdiction regarding their request for injunctive and mandamus relief

challenging the annexation petitions as void; (2) the trial court erred in granting the plea to

the jurisdiction regarding their request for a declaration concerning the City Charter when

that request did not directly challenge the annexation ordinances; and (3) the trial court

erred in dismissing the case in its entirety instead of offering appellants the opportunity to

replead because there was no incurable jurisdictional defect.

                                II. Quo Warranto Doctrine

       “Quo warranto proceedings are used by the State to protect itself and the good of

the public through agents of the State who control the proceedings.” City of Rockwall v.

Hughes, 246 S.W.3d 621, 627 (Tex. 2008). The State is the proper party to bring a quo

warranto action. See TEX . CIV. PRAC . & REM . CODE ANN . § 66.002 (Vernon 1997); see City

of Rockwall, 246 S.W.3d at 627; Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 437

(Tex. 1991). By requiring the State to bring such a proceeding, "the judgment settles the

validity of the annexation on behalf of all property holders in the affected area." Alexander

Oil Co., 825 S.W.2d at 437; Town of Fairview v. Lawler, 252 S.W.3d 853, 856 (Tex.

App.–Dallas 2008, no pet.). The Texas Supreme Court explained the rationale for quo

warranto proceedings as follows:

       The only proper method for attacking the validity of a city's annexation of
       territory is by quo warranto proceeding, unless the annexation is wholly void.
       The purpose of a quo warranto proceeding is to question the right of a
       person or corporation, including a municipality, to exercise a public franchise
       or office. In this case, Alexander questions the City's annexation authority.
       Through quo warranto proceedings, “the State acts to protect itself and the
       good of the public generally, through the duly chosen agents of the State
       who have full control of the proceeding.” Therefore, the State must bring the


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       action to question irregular use of the delegated annexation authority.

       Furthermore, quo warranto proceedings serve another purpose. By requiring
       that the State bring such a proceeding, we avoid the specter of numerous
       successive suits by private parties attacking the validity of annexations. The
       judgments of suits brought by private parties are binding only on the parties
       thereto so conflicting results might be reached in subsequent suits by other
       individuals. These problems are avoided by requiring quo warranto
       proceedings because the judgment settles the validity of the annexation on
       behalf of all property holders in the affected area.

       The requirement that an action seeking to set aside annexation for irregular
       use of power be brought as a quo warranto proceeding dates back as early
       as 1886. It continues to be followed today. The fact that the Legislature has
       reacted to other holdings regarding annexation, but has not acted to
       expressly provide a private action to set aside annexation in reaction to these
       cases, supports the position that a quo warranto proceeding is required to
       set aside annexation unless it is void.

Alexander Oil Co., 825 S.W.2d at 437. A private challenge of an annexation ordinance is

proper only when the ordinance is void or the Legislature expressly grants a private right

to challenge the annexation in some manner. City of Rockwall, 246 S.W.3d at 627;

Alexander Oil Co., 825 S.W.2d at 436; Town of Fairview, 252 S.W.3d at 856.

       In their first issue, appellants contend that the trial court erred in granting the plea

to the jurisdiction regarding their requests for injunctive and mandamus relief challenging

the annexation petitions as void. In connection with this issue, appellants assert that: (1)

the ordinances are void and not merely voidable; (2) annexation ordinances are subject to

a referendum petition under section 7.03 of the City Charter; and (3) the quo warranto

doctrine cannot deprive Ryan of his constitutional right to vote on the ordinances.

Appellants do not argue that they have been granted a private right to challenge the

annexation, and accordingly, we focus our attention on their contention that the ordinances

are void.


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                                         III. Standing

       We determine whether an individual has standing to challenge an annexation by

inquiring whether the challenge attacks the city's authority to annex the area in question

or simply complains of some violation of statutory procedure. City of Balch Springs v.

George F. Lucas Irrevocable Family Trust, 101 S.W.3d 116, 119-20 (Tex. App.–Dallas

2002, no pet.); City of San Antonio v. Hardee, 70 S.W.3d 207, 210 (Tex. App.–San Antonio

2001, no pet.); see City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417(Tex. App.–Fort

Worth 2000, no pet.). Stated in other words, “[d]istinctions should be drawn between

municipal acts unauthorized by law or color of law, and those consisting of a mere irregular

exercise of power.” Hardee, 70 S.W.3d at 210 (quoting Forbes v. City of Houston, 304

S.W.2d 542, 546 (Tex. Civ. App.–Galveston 1957, writ ref'd n.r.e.)).

       Individuals have been allowed to bring private causes of action when challenging

annexation of territory that (i) exceeds statutory size limitations, (ii) is within the corporate

limits of another municipality, (iii) is not contiguous with current city limits, and (iv) has a

boundary description that does not close. See Alexander Oil Co., 825 S.W.2d at 437; City

of Balch Springs, 101 S.W.3d at 119-20; Hardee, 70 S.W.3d at 210; Pearce, 33 S.W.3d

at 417. In contrast, a quo warranto suit is the proper way to challenge procedural

irregularities such as the adequacy of a service plan, lack of notice, lack of a quorum for

hearing, and "other deficiencies in the procedure of adopting the annexation ordinance."

Hardee, 70 S.W.3d at 210; see Laidlaw Waste Sys. (Dallas) Inc. v. City of Wilmer, 904

S.W.2d 656, 658 (Tex. 1995); Pearce, 33 S.W.3d at 417; Forbes, 304 S.W.2d at 546.

       In the instant case, appellants assert that the following “multiple instances of



                                               6
misconduct” rendered the annexation ordinances void:

       An appellee, Cindy Cerny provided inaccurate information to appellants
       concerning the number of voters in the last election for purposes of
       calculating the number of signatures needed for the referendum petition.

       The City did not “immediately” consider the petitions.

       “An unelected city attorney held the city counsel hostage, and no discussion
       was ever held regarding the petitions.”

       The City Council did not vote to either revoke the annexation ordinances or
       call for a vote.

       The City did not suspend the annexation ordinances upon receipt of the
       petitions.

       No public vote took place as required by section 7.03 of the City Charter.

       No vote took place in the annexed areas as required by the local government
       code.

       The City failed to provide the citizens of the affected area the right to vote.

We reject appellants’ argument. As an initial matter, appellants’ contention on appeal fails

to correspond to stipulations that they made at the trial court level. In the trial court, the

parties stipulated on the record that “the ordinances that are in question were duly adopted

by ordinance . . . [a]nd all the prerequisites to the adoption of such ordinances . . . were

complied with.” Specifically, appellants “are not challenging any procedures that occurred

prior to December 11, 2007,” when the ordinances were passed. Ryan further stated, on

the record, that “as far as the ordinances being valid, your Honor, yes, we are not

challenging anything that happened going up to the vote on those ordinances. Our beef

really is what happened later when they failed to follow the charter which then renders

those ordinances now void absent a vote.” Accordingly, appellants have failed to preserve

this issue for review. See TEX . R. APP. P. 33.1. Moreover, the alleged irregularities, even

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if true, constitute procedural irregularities and do not attack the City’s authority to annex

and thus do not confer standing on appellants.

       Finally, appellants contend that the City’s cumulative instances of misconduct

rendered the annexation void, rather than merely voidable. In support of their position,

appellants cite City of Northlake v. East Justin Joint Venture, 873 S.W.2d 413 (Tex.

App.–Fort Worth 1994, writ denied), for the proposition that a city's failure to follow

statutory procedures can render an ordinance void. In that case, the Fort Worth Court of

Appeals reasoned that because the Northlake City Council purported to pass a conversion

ordinance with fewer votes than required by the applicable statute, the defect "rises to the

level where the ordinance is void, and not just voidable. The council's action without the

requisite votes does not reach the threshold of colorable authority." Id. at 417. Contrary

to appellants’ argument, this case does not stand for the proposition that cumulative

procedural errors make an ordinance void instead of voidable. Appellants’ challenges to

the ordinances focus on procedural irregularities and not the City’s authority, and

accordingly, the ordinances are not void and are not subject to individual challenge.

                                      IV. City Charter

       In a subissue, appellants contend that annexation ordinances are subject to a

referendum petition under section 7.03 of the City Charter. We have already resolved this

issue against appellants in the related mandamus proceeding. See In re Ryan, No. 13-08-

179-CV, 2008 Tex. App. LEXIS 2956, at *9 (Tex. App.–Corpus Christi Apr. 18, 2008, orig.

proceeding [mand. denied]) (mem. op.). In that case, we held that, first, to the extent that

Ryan’s challenge is based on the annexations at issue herein, the proper method to

challenge annexation procedures is through quo warranto, and accordingly, Ryan lacks

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standing to bring this action. Id. at *7; see Laidlaw Waste Systems (Dallas), Inc., 904

S.W.2d at 658; Alexander Oil Co., 825 S.W.2d at 436; City of Port Isabel v. Pinnell, 161

S.W.3d 233, 238 (Tex. App.–Corpus Christi 2005, no pet.); see also TEX . CIV. PRAC . &

REM . CODE ANN . § 66.002(c) (quo warranto proceedings may be brought by the attorney

general or county or district attorney on his or her own motion or at the request of an

individual). In this regard, we noted that the record failed to indicate that Ryan has a

legislatively granted private right to challenge the annexation, or that the City lacked

authority to issue the annexations, or that the annexations were otherwise void. Ryan,

2008 Tex. App. LEXIS 2956 at *8. We further concluded that the law is clear that

annexation ordinances are not subject to the referendum provisions in city charters. Id. at

*8-*9; Vara v. City of Houston, 583 S.W.2d 935, 938 (Tex. Civ. App.–Houston [14th Dist.]

1979, writ ref’d n.r.e.); City of Hitchcock v. Longmire, 572 S.W.2d 122, 127 (Tex.

App.–Houston [1st Dist.] 1978, writ ref’d n.r.e.); see also Save our Aquifer v. City of San

Antonio, 237 F.Supp.2d 721, 729 (W.D.Tex. 2002) (“Annexation issues are not subject to

direct democracy voting through referendum, but rather are reserved to representative

democracy. . . .”). Accordingly, the City and City Council were not required to repeal the

annexation ordinances or put them to a referendum. This subissue is overruled.

                                 V. Constitutional Rights

       In a further subissue, appellants contend that the quo warranto doctrine cannot

prevent them from challenging the City’s actions on constitutional grounds and cannot

deprive them of standing to enforce Ryan’s constitutional right to vote on the annexation

ordinances.



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       We do not take lightly any impairment of the right to vote. “No right is more precious

in a free country than that of having a voice in the election of those who make the laws

under which, as good citizens, we must live. Other rights, even the most basic, are illusory

if the right to vote is undermined.” In re Lowery, 999 S.W.2d 639, 662 (Tex. Rev. Trib.

1998, pet. denied) (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)). Nevertheless,

relying on the "political question" rationale behind the judicial branch not interfering with

annexation and Hunter v. City of Pittsburgh, 207 U.S. 161 (1907), Texas courts of appeal

have held that annexations do not present a justiciable matter under due process

constitutional amendments. Superior Oil Co. v. City of Port Arthur, 628 S.W.2d 94, 96

(Tex. App.–Beaumont 1981, writ ref'd n.r.e.); see Alexander Oil Co. v. Seguin, 823 S.W.2d

309, 314 (Tex. App.–San Antonio 1989), affirmed, 825 S.W.2d 434 (Tex. 1991).

Accordingly, this subissue is overruled.

       Having rejected each of appellants’ arguments, we overrule appellants’ first issue

pertaining to the trial court’s ruling on the plea to the jurisdiction.

                                    VI. Declaratory Relief

       In their second issue, appellants contend that the trial court improperly extended the

quo warranto doctrine to prevent appellants from obtaining a declaration concerning the

City Charter that did not directly challenge the annexation ordinances. Appellants argue

that they have standing to seek a declaration regarding the validity of section 7.03 of the

City Charter. Appellants further contend that our recent ruling in In re Ryan did not fully

address the declaration sought by appellants herein. However, appellants’ “Verified

Original Petition, Application for Restraining Order and Petition for Writ of Mandamus”



                                               10
states that:

       For the reasons stated, plaintiffs seek declarations that:

       a.      section 7.03 of the charter is valid under Texas law;

       b.      the petitions at issue complied with the requirements set forth in
               section 7.03 of the charter; and

       c.      the Annexation Ordinances are currently suspended in accordance
               with section 7.03 of the charter.

Appellants’ claim cannot be characterized as solely concerning the validity of section 7.03,

but instead concerns the interaction of 7.03 and the annexation ordinances. We have

already concluded that appellants lack standing to pursue this issue. Subject matter

jurisdiction in a declaratory judgment action depends on whether the underlying

controversy is within the court’s jurisdiction; the declaratory judgment act does not confer

additional jurisdiction upon a court.      Rush v. Barrios, 56 S.W.3d 88, 105 (Tex.

App.–Houston [14th Dist.] 2001, pet. denied). Accordingly, the trial court did not err in

granting the plea to the jurisdiction on this claim. Appellants’ second issue is overruled.

                              VII. Amendment of Pleadings

       In their third and final issue, appellants contend that the trial court erred in

dismissing the case in its entirety instead of offering appellants the opportunity to replead

because there was no incurable jurisdictional defect.

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

has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause.

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass'n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings

liberally in favor of the plaintiffs and look to the pleaders' intent. Miranda, 133 S.W.3d at

                                             11
226. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the

issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to

amend. Id. at 227. If the pleadings affirmatively negate the existence of jurisdiction, then

a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to

amend. See id.

       While appellants have a right to amend their pleadings to attempt to cure

jurisdictional defects, the facts and evidence recited in their petition lead us to conclude

that it is impossible for them to amend their pleadings in a manner which would establish

that they have standing to pursue this matter. See id.; City of San Benito v. Ebarb, 88

S.W.3d 711, 724 (Tex. App.–Corpus Christi 2002, pet. denied). In short, the pleading is

incurable because the allegations therein affirmatively negate appellants’ standing to

pursue these issues. Accordingly, dismissal is appropriate.

                                       VIII. Conclusion

       Having overruled each of appellants’ issues, we affirm the order of the trial court

granting the plea to the jurisdiction filed by appellees.




                                                   LINDA REYNA YAÑEZ,
                                                   Justice



Memorandum Opinion delivered and filed
this the 28th day of August, 2008.




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