                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00403-CV

KAREN HALL,
                                                            Appellant
v.

CITY OF BRYAN, TEXAS,
                                                            Appellee


                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 09-002813-CV-272


                          MEMORANDUM OPINION

      The City of Bryan annexed part of Karen Hall’s property in 1999. For the second

time, she sued the City for disannexation. See TEX. LOC. GOV'T CODE ANN. § 43.141(b)

(West 2008). Because the trial court did not err in failing to file findings of fact and

conclusions of law or in granting the City’s plea to the jurisdiction, we affirm the trial

court’s judgment.

                                     BACKGROUND

      On July 17, 1999, the City adopted an ordinance annexing part of Hall’s property.

In 2004, she sought disannexation.      The trial court granted the City’s motion for
summary judgment and Hall appealed. We affirmed the trial court’s judgment in 2005.

See Hall v. City of Bryan, No. 10-05-00417-CV, 2006 Tex. App. LEXIS 10280 (Tex. App.—

Waco Nov. 29, 2006, pet. denied) (mem. op.). In 2010, Hall again sued the City for

disannexation. The trial court granted the City’s plea to the jurisdiction and, the trial

court, if it had any jurisdiction, granted the City’s motion for summary judgment.

                         FINDINGS OF FACT AND CONCLUSIONS OF LAW

        In her first issue, Hall argues that the trial court erred in failing to file findings of

fact and conclusions of law.        Hall timely filed a request for findings of fact and

conclusions of law and a notice of past due findings of fact and conclusions of law with

respect to the trial court’s decision to grant the City’s plea to the jurisdiction. See TEX. R.

CIV. P. 296; 297.       A trial court has no duty, however, to file findings of fact and

conclusions of law when a case, like this one, has been dismissed for lack of subject

matter jurisdiction and no evidentiary hearing has been held.               See Zimmerman v.

Robinson, 862 S.W.2d 162, 164 (Tex. App.—Amarillo 1993, no writ); Timmons v. Luce, 840

S.W.2d 582, 586 (Tex. App.—Tyler 1992, no writ). See also Wion v. Thayler, No. 10-09-

00369-CV, 2010 Tex. App. LEXIS 9153, 2-3 (Tex. App.—Waco Nov. 17, 2010, no pet.)

(mem. op.) (trial court did not err in failing to file findings of fact and conclusions of

law after plea to the jurisdiction granted). Accordingly, the trial court did not err in

failing to file findings of fact and conclusions of law, and Hall’s first issue is overruled.

                                  PLEA TO THE JURISDICTION

        In her second issue, Hall asserts that the trial court erred in granting the City’s

plea to the jurisdiction. The City’s initial argument is that Hall lacks standing to bring

Hall v. City of Bryan                                                                     Page 2
her claim.

        Standing is a prerequisite to subject matter jurisdiction and may be raised by a

plea to the jurisdiction. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 313 (Tex. 2008).

Whether a court has subject matter jurisdiction is a question of law. Tex. Natural Res.

Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). 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. Ass'n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).         However, if a plea to the

jurisdiction challenges the existence of jurisdictional facts, we consider relevant

evidence submitted by the parties when necessary to resolve the jurisdictional issues

raised as the trial court is required to do. Tex. Dep't of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 227 (Tex. 2004).

Disannexation

        The Texas Constitution grants cities the power to annex, or bring within its

jurisdiction, land. TEX. CONST. art XI, § 5. The Legislature establishes procedures to be

used by cities in conducting annexations. See TEX. LOC. GOV'T CODE ANN. ch. 43 (West

2008). When a city brings property into its jurisdiction, it must present a proposed plan

for providing city services to the area being annexed. See TEX. LOC. GOV'T CODE ANN. §

43.056 (West 2008). If the city then fails or refuses to provide services or fails or refuses

to cause services to be provided to the area, a majority of the qualified voters of the

annexed area may petition the city for removal of the annexed property from the city by

a process called ―disannexation.‖ Id. § 43.141(a). If the city fails or refuses to disannex

Hall v. City of Bryan                                                                  Page 3
the area within a specified time period, a lawsuit for disannexation may be brought by

any one of the signers of the petition for disannexation. Id. § 43.141(b). The district

court shall enter an order disannexing the area if the court finds that the city ―failed to

perform its obligations in accordance with an annexation service plan or failed to

perform in good faith.‖

        But the process of disannexation, which an individual property owner has

standing to do under section 43.141 of the Local Government Code, is distinguishable

from complaints about the annexation process in the first instance. Complaints about

the annexation process cannot normally be brought by individual landowners. See City

of San Antonio v. Hardee, 70 S.W.3d 207, 211 (Tex. App.—San Antonio 2001, no pet.)

(plaintiffs did not have standing to complain that city did not follow the procedures set

out in section 43.052(b)-(c)); Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex.

1991) (plaintiff could not complain that notice given by city did not comply with statute;

that city failed to conduct proper and timely hearings and failed to provide, and

continued to fail to provide, a service plan as required; that city annexed the property

for the purpose of levying ad valorem taxes; and that city had no ability or intention to

provide service to the property); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer,

904 S.W.2d 656, 658 (Tex. 1995) (plaintiff had no standing to challenge alleged failures to

meet the notice and signature requirements). That is the crux of footnote one in our

earlier opinion regarding Hall’s initial efforts to disannex her property. Hall v. City of

Bryan, No. 10-05-00417-CV, 2006 Tex. App. LEXIS 10280, n. 1 (Tex. App.—Waco Nov.

29, 2006, pet. denied) (mem. op.).

Hall v. City of Bryan                                                                    Page 4
         Therefore, to determine if the trial court has jurisdiction of a disannexation suit,

the nature of the landowner’s complaints have to be closely examined to determine if

the complaint is about the annexation process or the implementation of the annexation

plan. See City of San Antonio, 70 S.W.3d at 210 (Historically, a review of an individual

party's standing to challenge annexation inquires whether the challenge attacks a city's

authority to annex the area in question or simply complains of some violation of

statutory procedure.); see also City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex.

App.—Fort Worth 2000, no pet.). A misrepresentation by the city about the plan in the

annexation process is the former type complaint, and an individual property owner

does not have standing to sue for disannexation. In that instance, the only proper

method for attacking the city's annexation of territory is through a quo warranto

proceeding.1 Alexander Oil Co., 825 S.W.2d at 436. On the other hand, a complaint that

the city has failed to provide services to specific property that was annexed, under a

service plan or in good faith, gives that individual property owner standing to sue the

city to have the property disannexed. TEX. LOC. GOV'T CODE ANN. § 43.141(b) (West

2008).

         Even an annexation and services plan that was not made in ―good faith‖ could

nevertheless be implemented or attempted to be implemented in good faith. In effect,

the motive for the annexation and the implementation of the annexation services plan

are, and must remain, distinct because only a complaint about the latter gives an


1Quo 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 n. 8 (Tex.
2008).

Hall v. City of Bryan                                                                               Page 5
individual landowner the right to complain, i.e. standing, and thus the right to have

property disannexed.       See Alexander Oil Co., 825 S.W.2d at 436 n. 1. (―There is no

provision for judicial inquiry into a municipality’s motives to annex land.‖)

        Thus we will closely examine the allegations in Hall’s petition to see if she is

complaining about having been annexed in the first instance or whether she is

complaining about the City’s lack of a good faith effort in its performance to provide

services to the area.

Hall’s Lawsuit

        Hall brought her disannexation suit strictly pursuant to the provision that the

City failed to perform in good faith. She acknowledged in her first amended petition

that

        The City’s failure to provide a statutorily adequate Service Plan was
        directly litigated in Hall v. City of Bryan, 2006 Tex. App. LEXIS 10280 (Tex.
        App.—Waco, Nov. 29, 2006, pet. denied). A copy of the Opinion is
        attached for the Court’s reference as Exhibit ―C.‖ The Court held that an
        individual citizen could only hold the City to what is promised in the
        Service Plan and not to what was required by TEX. LOC. GOV’T CODE §
        43.056. This petition is limited to the City’s lack of good faith in annexing Hwy.
        21 E. (Emphasis added).

It is undisputed that the City is not providing full municipal services to the area

annexed. Hall’s complaints with the City’s failure to perform in good faith, however,

relate back to representations, or lack thereof, made by the City at the public hearings

held prior to the annexation. The gist of Hall’s petition is that the City promised at

those public hearings to provide services pursuant to section 43.056 of the Local

Government Code (Provision of Services to Annexed Area) and failed to do so. Hall


Hall v. City of Bryan                                                                        Page 6
alleged in her petition that the City ―chose to be invidiously misleading, evasive or

totally non-responsive to requests for information about the State of Texas mandated

services.‖ She further alleged in the conclusion of her petition that

        Bryan’s deception during public hearings – by admission or omission –
        about services rural residents would receive after annexation is beyond
        disingenuous. Bryan never intended to meet that obligation and the flim-
        flam offered at those public hearings is further evidence of Bryan failing to
        perform in good faith.

This is an attack on the validity of the annexation in the first instance, not that the City

failed to perform in good faith. Hall’s attack is, therefore, not governed by section

43.141(b). See City of Wichita Falls, 33 S.W.3d at 417.

        Accordingly, because of the type of complaint made by Hall in her first amended

petition, she has no standing to proceed with her petition for disannexation; and the

trial court did not err in granting the City’s plea to the jurisdiction.

        Her second issue is overruled.

                                            CONCLUSION

        Having found that the trial court did not err in granting the City’s plea to the

jurisdiction, we need not review Hall’s remaining two issues regarding the City’s

motion for summary judgment. 2 The trial court’s judgment is affirmed.3



2We note, however, that by finding it had no jurisdiction of the proceeding, the trial court could not
properly dispose of the proceeding on the merits of the issue as presented in the summary judgment
motions and resulting judgment.

3 Our affirmance of the trial court’s judgment should not be construed as a validation of the process
through which the City has annexed property and subjected the existing property owners to full city
taxation without also providing full city services. If the annexation procedure does not provide for
providing services to existing property owners without them having to pay for the services, it appears to
be non-compliant with the annexation statute. See TEX. LOC. GOV’T CODE ANN. § 43.056(f)(2) (West 2008).

Hall v. City of Bryan                                                                             Page 7
                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 5, 2011
[CV06]




Thus, when the city service plan called for the extension of services to the annexed area only if the
property owner/developer, including existing residents, paid for the extension of services, the plan
appears to depart from the statute. Failure of the service agreement to provide for services to existing
residents in the area annexed without those residents having to pay for the extension services to the area
appears to be a deficient service agreement under the statute. Such a deficiency, if any, is a part of the
annexation process about which Hall cannot complain in this proceeding. Her complaint is not that the
service plan that was adopted and implemented was not complied with, but that the service plan that
should have been adopted and implemented has not been complied with.

Hall v. City of Bryan                                                                              Page 8
