      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00551-CV



                      Block House Municipal Utility District, Appellant

                                                v.

  The City of Leander, Texas; and Anthony Johnson, Individually and in his Capacity as
                                City Manager, Appellees


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 07-632-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                             CONCURRING OPINION


               I concur in the judgment only. I agree with the majority that, once a municipality

determines under Texas Parks and Wildlife Code section 26.001(a) there is no feasible and prudent

alternative to the use or taking of parkland, the municipality’s determination is conclusive unless

there is a showing that the municipality acted fraudulently, in bad faith, or arbitrarily and

capriciously, in making its determination. See Tex. Parks & Wild. Code Ann. § 26.001(a) (West

2002); Housing Auth. v. Higginbotham, 143 S.W.2d 79, 88 (Tex. 1940); Whittington v. City of

Austin, 174 S.W.3d 889, 898 (Tex. App.—Austin 2005, pet. denied); see also Malcomson Rd. Util.

Dist. v. Newsom, 171 S.W.3d 257, 268-69 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

Because there has been no such showing in this case, I would affirm the district court’s judgment.
                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: July 10, 2009




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