                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-340-CV


RHINO REAL ESTATE INVESTMENTS,                                    APPELLANTS
INC. AND THE RHINO GROUP, L.P.

                                        V.

CITY OF RUNAWAY BAY, TEXAS                                            APPELLEE

                                    ------------

             FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      The primary issue we address in this appeal is whether Appellee City of

Runaway Bay, Texas (City) has extended the building permit requirements it

adopted in Ordinance 251 to its extraterritorial jurisdiction (ETJ). Because we

hold that it has not, we will reverse the trial court’s judgment to the contrary,




      1
          … See Tex. R. App. P. 47.4.
and we will reverse the trial court’s award of attorney’s fees to the City and

remand that issue to the trial court for its reconsideration.

                     II. P ROCEDURAL AND B ACKGROUND F ACTS

      The City is a general law town.           Appellants Rhino Real Estate

Investments, Inc. and the Rhino Group, L.P. (collectively referred to as “Rhino”)

own twelve lots located within the City’s ETJ. The plats for these lots were

approved before Rhino purchased them and before the City was incorporated

in 1979 or 1980. The City sued Rhino, seeking a temporary restraining order,

temporary injunction, and permanent injunction requiring Rhino to comply with

the City’s building permit requirements before building homes on these twelve

lots. Pursuant to local government code section 212.002,2 the City adopted

Ordinance 251 providing for subdivision regulation within the City’s municipal

limits.3 The City claimed in its suit that it was authorized by local government

code section 212.003 to extend the application of Ordinance 251 to its ETJ




      2
          … Tex. Local Gov’t Code Ann. § 212.002 (Vernon 2008).
      3
       … Ordinance 251 consists of forty-eight pages. It contains provisions
for subdividing land; filing preliminary and final plats and plans; and designing
streets and alleys, storm sewers, sanitary sewers, water mains, and utility
services. Interestingly, Ordinance 251, at least the copy contained in our
record, contains no provisions dealing with the construction of buildings, but
because neither party disputes that Ordinance 251 is the City’s building code,
we do not address this issue. Runaway Bay, Tex., Ordinance 251 (1999).

                                        2
and that it did so via Ordinance 430, adopted on September 19, 2006. 4 Thus,

the City’s suit for temporary restraining order, temporary injunction, and

permanent injunction sought to enforce Ordinances 251 and 430 by enjoining

Rhino from violating these Ordinances; the City claimed that Rhino was required

to obtain building permits, pay inspection fees, and meet other requirements of

Ordinance 251 before building homes on its twelve lots located in the City’s

ETJ.

       The trial court signed an order granting the City’s request for a temporary

restraining order. Rhino filed an answer and a counterclaim for declaratory

relief, alleging in part that the platting of Rhino’s lots was completed prior to



       4
       … The City makes these same arguments on appeal. Rhino points out,
however, that subchapter A of local government code chapter 212 is titled
“Regulation of Subdivisions” and that section 212.002 is set forth in
subchapter A. Consequently, Rhino argues that “this subchapter says nothing
about building in general or permits in specific” and does not confer authority
on the City to extend its building code as opposed to “rules governing plats and
subdivisions” to its ETJ, especially in light of section 212.049 (set forth in
subchapter B), which provides that “this subchapter does not authorize the
municipality to require municipal building permits or otherwise enforce the
municipality’s building code in its [ETJ].” See Tex. Local Gov’t Code Ann.
§ 212.049; see also Milestone Potranco Dev., Ltd. v. City of San Antonio, No.
04-08-00479-CV, 2009 WL 1471881, at *1–3 (Tex. App.—San Antonio May
27, 2009, no pet. h.) (recognizing city had extended application of “Tree
Ordinance”—that was related to rules governing plats and subdivisions—to its
ETJ). Based on our disposition of Rhino’s third issue, however, we need not
address this argument by Rhino. See Tex. R. App. P. 47.1. That is, regardless
of whether or not the City has authority to extend the application of its building
code to its ETJ, Ordinance 430 did not do that here.

                                        3
the adoption of Ordinance 430 on September 19, 2006, and that,

consequently, chapter 245 of the local government code prohibited application

of Ordinance 430 to Rhino’s projects.

      Eventually, the parties entered into a “Joint Final Pre-Trial Order”

stipulating to certain uncontested facts. The case proceeded to a bench trial

on the contested facts.   The trial court signed a final judgment granting a

declaratory judgment for the City that Ordinances 251 and 430 applied to

subdivisions within the City’s ETJ and required building permits, inspections,

approvals, and payment of related fees for development of property in the

City’s ETJ and that Rhino’s actions in developing the twelve lots at issue

without complying with Ordinances 251 and 430 violated the City’s ordinances.

The final judgment permanently enjoined Rhino from developing the lots at issue

in a manner in violation of Ordinances 251 and 430 and awarded the City

$35,801.00 in attorney’s fees pursuant to the declaratory judgment act. See

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). The judgment

provided that Rhino take nothing on its counterclaim.

      Rhino perfected this appeal.




                                        4
                       III. N O O RDINANCE E XISTS E XTENDING
                APPLICATION OF O RDINANCE 251 TO THE C ITY’S ETJ


      In its third issue, Rhino argues that the trial court’s judgment is erroneous

because it orders Rhino to obtain building permits and to comply with Ordinance

251 when “[t]he City introduced no evidence that its city council enacted an

ordinance expressly extending its building code to new structures in its ETJ.”

The City argues in this appeal, as it did in the trial court, that the City (1) was

authorized by local government code section 212.002 to adopt regulations

requiring   building   permits   and   applicable   inspections   for   subdivision

development and that it had adopted such regulations via Ordinance 251, and

(2) was authorized by local government code section 212.003 to extend the

application of Ordinance 251 to its ETJ and that it did so via Ordinance 430.

      Section 212.002 of the local government code provides that,

      After a public hearing on the matter, the governing body of a
      municipality may adopt rules governing plats and subdivisions of
      land within the municipality’s jurisdiction to promote the health,
      safety, morals, or general welfare of the municipality and the safe,
      orderly, and healthful development of the municipality.

Tex. Loc. Gov’t Code Ann. § 212.002. And section 212.003, titled “Extension

of Rules to Extraterritorial Jurisdiction,” provides in pertinent part that the

governing body of a municipality by ordinance may extend to the extraterritorial




                                         5
jurisdiction of the municipality the application of municipal ordinances adopted

under Section 212.002. Id. § 212.003.

      Thus, even assuming the City’s argument that it possesses authority

under section 212.002 to extend building code ordinances to its ETJ (which

Rhino disputes, but we need not decide because of our disposition of Rhino’s

third issue), the City must do so by ordinance as set forth in section 212.003.

See id.; City of Austin v. Jamail, 662 S.W.2d 779, 782 (Tex. App.—Austin

1983, writ dism’d) (recognizing municipality must have specific statutory

authority to enforce ordinances in the municipality’s ETJ). The City claims it

did extend application of Ordinance 251’s building code requirements to its ETJ

by enacting Ordinance 430.

      Ordinance 430 provides, in pertinent part:

      AN ORDINANCE OF THE CITY OF RUNAWAY BAY, TEXAS
      AMENDING APPENDIX 1, SECTION 26.00 OF THE CODE OF
      ORDINANCES TO PROVIDING FOR BUILDING PERMIT FEES FOR
      PROPERTIES LOCATED IN THE CITY LIMITS AND THE EXTRA
      TERRITORIAL JURISDICTION OF THE CITY . . . .

      BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
      RUNAWAY BAY, TEXAS:

            SECTION 1: That Appendix 1, Section 26.00 of the Code of
      Ordinance Building Department shall read:

      ADD: (A).




                                       6
             Building permits fees for properties located inside the city
      limits and outside the city limits (extra territorial jurisdiction) are
      due with the building permit application and are as follows:

            (1).   Living areas . . . . . . . . . . . .$.60 per square feet.

            (2).   Inspection Fees . . . . . .. . .. $.60 per square feet.

[Italics added.] The City claims that the italicized language above, i.e., that

“[b]uilding permits fees for properties located . . . outside the city limits (extra

territorial jurisdiction) are due with the building permit application,” satisfies

local government code section 212.003’s requirement that an ordinance be

enacted to extend application of any municipal ordinance adopted under section

212.002 to the City’s ETJ. See Tex. Loc. Gov’t Code Ann. § 212.003. The

City argues that this one sentence makes all of the provisions of the forty-eight-

page Ordinance 251 applicable to the City’s ETJ.

      “Municipal ordinances are interpreted by the same rules of construction

that apply to statutes.” Bd. of Adjustment v. Wende, 92 S.W.3d 424, 430

(Tex. 2002); Howeth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877,

904–05 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (citing SWZ, Inc.

v. Bd. of Adjustment of City of Fort Worth, 985 S.W.2d 268, 270 (Tex.

App.—Fort Worth 1999, pet. denied)). Statutory interpretation is a question of

law. Howeth Invs., Inc., 259 S.W.3d at 904–05. When the construction of

municipal ordinances is involved, as when statutory construction is involved,

                                         7
our primary duty is to carry out the intentions of the municipality’s legislative

body. Bolton v. Sparks, 362 S.W.2d 946, 951 (Tex. 1962); City of Dallas v.

Blanton, 200 S.W.3d 266, 277 (Tex. App.—Dallas 2006, no pet.). In carrying

out this duty, we look first to the plain meaning of the words. Wende, 92

S.W.3d at 430.     If the language is unambiguous, we interpret the ordinance

using its plain language unless that interpretation leads to absurd results. See

Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145

S.W.3d 170, 177 (Tex. 2004).

      We begin by noting that Ordinance 251 by its express terms applies only

to subdivisions within the City that are “created after the final approval of this

document”; that is, after March 16, 1999. Runaway Bay, Tex., Ordinance 251

(1999). Rhino’s twelve lots are not within the City and were not created after

March 16, 1999. Thus, it is undisputed that Ordinance 251 does not apply to

Rhino’s lots unless, as the City contends, Ordinance 430 extended application

of Ordinance 251 to the City’s ETJ.

      Turning to Ordinance 430, it does not expressly amend or reference

Ordinance 251. Runaway Bay, Tex., Ordinance 430 (2006). Ordinance 430

by its terms amends Appendix 1, Section 26.00 of the Code of Ordinance

Building Department. Id. Neither the Code of Ordinance Building Department

nor Appendix 1 was admitted into evidence at trial, nor were they included in

                                        8
our record on appeal. Thus, the actual document that Ordinance 430 by its

terms was enacted to amend was not before the trial court and is not before

us.

      Giving the words of Ordinance 430 their plain meaning, the ordinance

simply amends appendix 1, section 26.00 of the code of ordinances to set a fee

for building permits and inspections in the City’s ETJ. Imposing a requirement

for a “building permit fee” in the City’s ETJ does not seem in anyway to equate

to the adoption of an entire building code in the City’s ETJ. Accord City of

Coppell v. Gen. Homes Corp., 763 S.W.2d 448, 452, 454 (Tex. App.—Dallas

1988, writ denied) (ruling on claim that city “never passed any ordinances

authorizing [it] to assess or collect the disputed fees” by reviewing ordinances

relied upon by city and holding that ordinances relied upon by city did not in

fact authorize city to collect water tapping fees). Nothing in the plain language

of Ordinance 430 purports to extend the City’s building code to its ETJ. See

Tex. Gov’t Code Ann. § 311.011 (Vernon 2005) (providing that in construing

a statute—or here, an ordinance—words are to be given their common

meaning); City of Coppell, 763 S.W.2d at 448.

      Additionally, the preamble to Ordinance 430 expressly states that the

purpose of the ordinance is “providing for building permit fees for properties

located in the city limits and the extra territorial jurisdiction of the city,” not to

                                          9
extend the building code in its entirety to the City’s ETJ. Runaway Bay, Tex.,

Ordinance 430. In construing Ordinance 430, we are authorized to consider the

object sought to be obtained and the preamble, and they do not support the

City’s contention that Ordinance 430 extended the building code to its ETJ.

See Tex. Gov’t Code Ann. § 311.023.

      In short, based on the record before us, we hold that Ordinance 430 does

not extend the application of the City’s building code to its ETJ. We sustain

Rhino’s third issue.

                             IV. A TTORNEY’s F EES

      In their fourth issue, Rhino conditionally challenges the award of trial and

appellate attorney’s fees to the City; Rhino claims that if we reverse the trial

court’s judgment, then we remand the issue of attorney’s fees to the trial court.

Rhino makes no other challenge to the trial court’s attorney’s fees award.

      Both Rhino and the City sought a declaratory judgment in the trial court.

A trial court may award costs and reasonable attorney’s fees as are equitable

and just in a declaratory judgment proceeding. See Tex. Civ. Prac. & Rem.

Code Ann. § 37.009 (Vernon 2008).            Although a trial court possesses

discretion in a declaratory judgment action to award attorney’s fees to the

nonprevailing party, when, as here, it awards attorney’s fees to the prevailing

party in a declaratory judgment action, and we reverse the trial court’s

                                       10
declaratory judgment, we are required to remand the attorney’s fees issue to

the trial court for its reconsideration in light of our reversal. See Hartsell v.

Town of Talty, 130 S.W.3d 325, 329 (Tex. App.—Dallas 2004, pet. denied).

We sustain Rhino’s fourth issue.

                                 V. C ONCLUSION

      Having sustained Rhino’s third issue, we reverse the trial court’s

declaratory judgment for the City. Based on our disposition of this issue, it is

not necessary for us to reach Rhino’s first or second issues. See Tex. R. App.

P. 47.1.   Having sustained Rhino’s fourth issue, we remand the issue of

attorney’s fees to the trial court for its reconsideration.




                                             SUE WALKER
                                             JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: July 23, 2009




                                        11
