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                                   MEMORANDUM OPINION

                                          No. 04-06-00551-CV

                                      CITY OF SEGUIN, TEXAS,
                                             Appellant

                                                     v.

                                      Robert L. WORTH, Jr., et al.,
                                                Appellees

                    From the 25th Judicial District Court, Guadalupe County, Texas
                                     Trial Court No. 06-0897-CV
                              Honorable Gary L. Steel, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 23, 2008

REVERSED AND DISMISSED

           The City of Seguin, Texas appeals the trial court’s order granting a temporary injunction that

enjoins the City from enforcing the annexation of certain property until the parties have arbitrated

their dispute pursuant to section 43.052(i) of the Texas Local Government Code (“Code”). In light

of the Texas Supreme Court’s decision in City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008),

we reverse the trial court’s order and dismiss the underlying lawsuit.

                                              BACKGROUND
                                                                                                           04-06-00551-CV

        In January of 2006, the City held a hearing relating to the annexation of four areas of land

each of which contained less than 100 tracts but which were in the same geographic area and shared

common boundaries. After additional notices and hearings, an annexation ordinance relating to the

four areas of land was first read on April 18, 2006. On April 26, 2006, Robert L. Worth, Jr. filed

a petition for arbitration with the City Secretary seeking arbitration if the City refused to place the

area in which he owned property (“Area 1”) in a three year annexation plan. Worth asserted that

the City was attempting to circumvent section 43.052 by annexing the property without having it

subject to a three year annexation plan.1 On May 2, 2006, the City rejected Worth’s petition finding

that Worth’s allegations were groundless and without merit. The same day, the City enacted the

ordinance that would annex Area 1 effective June 1, 2006.

        On May 19, 2006, Worth and the other appellees filed a petition in district court seeking

declaratory and injunctive relief. Although the petition sought a declaration that the City was

attempting to circumvent section 43.052 of the Code by refusing to include Area 1 in a three-year

plan, the petition also sought a declaration that the appellees were entitled to arbitrate their dispute

and to enjoin further enforcement of the annexation ordinance until after arbitration.




        1
         Section 43.052(i) of the Code provides:
        A municipality may not circumvent the requirements of this section by proposing to separately annex
        two or more areas described by Subsection (h)(1) if no reason exists under generally accepted
        municipal planning principles and practices for separately annexing the areas. If a municipality
        proposes to separately annex areas in violation of this section, a person residing or owning land in the
        area may petition the municipality to include the area in the municipality’s annexation plan. If the
        municipality fails to take action on the petition, the petitioner may request arbitration of the dispute.
        The petitioner must request the appointment of an arbitrator in writing to the municipality. Sections
        43.0564(b), (c), and (e) apply to the appointment of an arbitrator and the conduct of an arbitration
        proceeding under this subsection. Except as provided by this subsection, the municipality shall pay
        the cost of arbitration. If the arbitrator finds that the petitioner’s request for arbitration was groundless
        or requested in bad faith or for the purposes of harassment, the arbitrator shall require the petitioner
        to pay the costs of arbitration.

TEX. LOC. GOV’T CODE ANN. § 43.052(i) (Vernon 2008).

                                                            -2-
                                                                                                        04-06-00551-CV

         The City filed a plea to the jurisdiction asserting that the appellees were not challenging the

City’s authority to annex the land but only procedural requirements; therefore, the only proper

means to challenge the annexation was in a quo warranto proceeding. The appellees responded that

section 43.052(i) is a specific legislative authorization; therefore, the appellees had standing to seek

injunctive relief to compel the City to engage in arbitration. At the hearing on the City’s plea and

the temporary injunction, the appellees clarified that the relief they were seeking was for the trial

court to compel arbitration.2 The trial court denied the plea to the jurisdiction and granted a

temporary injunction that: (1) allowed the City to annex the property; (2) enjoined the City and the

appellees from enforcing or proceeding on any right, privilege or benefit that might arise as a result

of annexation until the parties engaged in arbitration; and (3) left the issue of whether the annexation

was proper for the arbitrator to decide.

                                                     DISCUSSION

         Recognizing that issues similar to those raised in this appeal were pending before the Texas

Supreme Court and that the Texas Supreme Court’s decision would likely impact our disposition

of this appeal, we abated this appeal on October 31, 2006. After the Texas Supreme Court issued

its opinion in City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008), we reinstated the appeal and

permitted the parties to file supplemental briefs addressing the Texas Supreme Court’s decision.

Although the City filed a supplemental brief arguing the decision in Hughes is controlling, the

appellees did not file a supplemental brief.



         2
           The appellees’ attorney stated, “So we believe and the evidence shows that the City circumvented this three-
year process and separately annexed two or more areas in order to avoid that three-year plan. We’re not asking to void
the annexation. We’re simply asking that we be allowed to arbitrate this issue in front of an arbitrator as provided in the
local government code.” The attorney later clarified, “We’re asking the Court that we are entitled to arbitration and that
this case ought to be sent to arbitration. That was part of our request for declaratory relief. We were never requesting
that this Court hold that they have violated the H-1 exception.”

                                                           -3-
                                                                                       04-06-00551-CV

       In Hughes, the Texas Supreme Court initially noted that “unless an annexation is wholly void

or the Legislature has expressly granted a private right to challenge the annexation in some manner,

a quo warranto proceeding brought by the State is the only proper means of attacking a

municipality’s annexation in court.” 246 S.W.3d at 627. In Hughes, as in the instant case, the

appellee did not argue that the annexation proceeding was void but argued that the Legislature

granted landowners a private right to arbitration by enacting section 43.052(i). Id. The Texas

Supreme Court, however, rejected this argument, holding that section 43.052(i) “does not create a

substantive private right for a landowner to compel arbitration if a municipality takes action on the

landowner’s petition by denying it . . . .” Id. at 631. Here, the City denied the appellees’ petition;

therefore, the appellees do not have a private right to challenge the annexation, and they lack

standing to pursue the underlying lawsuit. See id.

                                           CONCLUSION

       The trial court’s order is reversed and the underlying cause is dismissed.



                                                       Sandee Bryan Marion, Justice




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