                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00105-CV


NORTHWEST INDEPENDENT                                                  APPELLANT
SCHOOL DISTRICT

                                         V.

CARROLL INDEPENDENT                                                     APPELLEE
SCHOOL DISTRICT


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        FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

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         CONCURRING AND DISSENTING OPINION
  ON APPELLEE’S MOTION FOR EN BANC RECONSIDERATION
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      I join in the majority’s decision to grant Carroll ISD’s (Carroll’s) motion for

en banc reconsideration and to withdraw the panel’s opinion of February 16,

2012. I join in much of the majority’s new en banc opinion on reconsideration,

specifically its denial of Northwest ISD’s (Northwest’s) first two issues. Despite
additional evidence developed after this court reversed the trial court’s grant of

Northwest’s first plea to the jurisdiction, I see no reason to revisit those issues.

      Where I differ with the majority concerns its sustaining of Northwest’s third

issue “to the extent that [Carroll] is attempting to contest” the elections to

consolidate school districts to create Northwest or “challenge” the commissioners

courts’ orders that created Northwest in 1949. I disagree that Carroll is, to any

extent, contesting the elections creating Northwest in 1948 or collaterally

attacking the commissioners courts’ orders establishing the southern boundary

for Northwest in 1949.

The issue

      The majority only briefly references the crux of the case in footnote 2 of its

opinion.    Carroll shares a common boundary with Northwest; the northern

boundary of Carroll is the southern boundary of Northwest.            Northwest was

created by consolidation of several school districts located in Tarrant, Denton,

and Wise Counties by 1949 county commissioners courts’ orders of those

counties, approving elections in each district.       Neither the elections nor the

orders describe Northwest’s southern boundary by a metes and bounds

description but, instead, identify its southern boundary only as lying along the

Tarrant-Denton County line. The Tarrant County Commissioners Court order

that created Carroll in 1959 likewise did not describe Carroll’s northern boundary

by metes and bounds but referred to that boundary only as the “North Line” of

Tarrant County. Nothing in the field notes or orders of 1949 or 1959 describes or


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defines the common boundary of the school districts as other than the Tarrant-

Denton County line. And nothing in the orders identifies the location of either the

county line or the districts’ common boundary on the ground.

      Contrary to the majority’s terminology (used by it to describe Northwest’s

and Carroll’s common boundary), no language in the documents pertaining to the

elections or in the field notes or the commissioners courts’ orders creating the

school districts identifies the location of the districts’ common boundary as the

“long-honored” boundary, or ties it to the “then-existing” county line. Those terms

in the majority opinion appear only in Northwest’s brief. It is only Northwest’s

position that this court “moved” the county line from its “historic,” “long-accepted”

location by our decision in our previous case in which we established the location

of the Tarrant-Denton County line, which I address below.                Use of that

terminology by the majority gives a misleading impression that this court is

assuming as true that a different location, namely, the 1852 “White line,” was

somehow previously established and should prevail as the districts’ mutual

boundary rather than the Tarrant-Denton County line because the White line is

where representatives of the school districts believed the county line to be when

the school districts were created. But that issue, if it is an issue at all, has yet to

be determined, and is not before us on this appeal. 1 As we observed in our


      1
      I also disagree with the majority’s holding that the orders of the county
commissioners courts defining the districts’ common boundary are rendered
“ambiguous” by this court’s 2002 decision defining the location of the Tarrant-
Denton County line. The county commissioners courts agreed to the county line

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opinion in the first appeal in this case, the precise location of the Tarrant-Denton

County line was the subject of a protracted dispute between the two counties

resulting in numerous surveys over 150 years ago.         Tarrant Cnty. v. Denton

Cnty., 87 S.W.3d 159, 161–67 (Tex. App.—Fort Worth 2002, pet. denied) (op. on

reh’g), disapproved on other grounds, Martin v. Amerman, 133 S.W.3d 262, 268

(Tex. 2004), superseded by Tex. Civ. Prac. & Rem. Code Ann. § 37.004(c) (West

2012). The counties chose to tie the common school district boundary between

Northwest and Carroll school districts to the Tarrant-Denton County line when

they created the two school districts in 1949. But therein lies the problem. This

court’s 2002 decision in Tarrant County v. Denton County held that the county

line was not definitively established on the ground until 2002. Id. at 180. Thus,

how Northwest could unilaterally arrive at what the majority refers to as the “long-

existing districts’ boundary line metes and bounds description” that Northwest

then filed with the Texas Education Agency and that differs from the Tarrant-

Denton County line is not supported by the record before us.

Our first opinion

      In its first plea to the jurisdiction, Northwest contended (among other

grounds as discussed by the majority) that Carroll was seeking to change the


where it was established by this court’s 2002 opinion. Carroll claims that the
language of the orders establishing the boundaries of the districts is clear in
defining the districts’ common boundary, and Northwest has pled a number of
defenses but ambiguity is not one of them. That issue would only concern the
merits, rather than jurisdiction, and is premature at this juncture.


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geographical boundaries separating the two school districts and to transfer to

itself Northwest property along with a significant tax base and student population.

Northwest argued that the trial court had no jurisdiction because section 13.051

of the Texas Education Code provided the exclusive administrative mechanism

for changing school district boundaries by which territory could be “detached from

a school district and annexed to another school district that is contiguous to the

detached territory.” See Tex. Educ. Code Ann. § 13.051 (West 1999).

      In reversing the trial court’s grant of Northwest’s plea to the jurisdiction, we

expressly rejected Northwest’s contention that Carroll was seeking to “change

the existing boundary line between the two districts.” Carroll ISD v. Nw. ISD, 245

S.W.3d 620, 624 (Tex. App.—Fort Worth 2008, pet. denied). We held: “Rather,

Carroll ISD is seeking a judicial declaration regarding whether the Disputed Area

is in the Carroll ISD or the Northwest ISD.” Id. We pointed out that Carroll’s

pleadings alleged that the two school districts had “always defined their joint

boundary as coterminous with the Tarrant-Denton County line,” that this court in

Tarrant County v. Denton County had determined that the county line is further

north than the two school districts previously believed, and that, consequently, a

boundary dispute had arisen between the districts. Id. at 624–25. Thus, we held

in the first appeal that Carroll

      does not seek to detach and annex the Disputed Area from
      [Northwest], but seeks only a judicial determination regarding in
      which of those districts the Disputed Area is, and has always been,
      located. Accordingly, the trial court erred by granting [Northwest’s]



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      plea to the jurisdiction on the ground that [Carroll] seeks a
      modification of the existing boundary line between the two districts.

Id. at 625 (emphasis added).

This Appeal

      In its appeal from the denial of its second plea to the jurisdiction, Northwest

again argues that the trial court lacked jurisdiction because Carroll is seeking to

“detach” and “annex” the Disputed Area and that the education code provides the

exclusive remedy. I agree with the majority’s overruling of Northwest’s first and

second issues, reiterating our holdings in the first appeal that Carroll is not

seeking to “detach” or “annex” additional property into its district but, rather, is

seeking a judicial declaration of the parties’ rights, interests, and obligations in

the Disputed Area and the location of the common boundary between the

districts, and that these issues may be decided in a declaratory judgment action.

I agree that our holdings on these issues are “law of the case” in this appeal.

      In its second plea to the jurisdiction, Northwest raised new, alternative

grounds for dismissal, urging that Carroll’s suit is either an untimely election

challenge or an impermissible collateral attack. In its third issue on this appeal,

Northwest argues that the elections and orders that created the Northwest school

district established the boundaries of Northwest, that Carroll’s suit constitutes

either a “challenge” to those elections or to the orders approving the elections by

seeking to move or change Northwest’s southern boundary, and that, to do so,

Carroll must have timely filed an election contest within thirty days, failing which



                                         6
the orders of the county commissioners courts declaring the result of those

elections—establishing the location of the boundaries of the Northwest school

district—cannot be “collaterally attacked” by Carroll. The majority appears to

agree with Northwest, in part, by holding that “to the extent [that Carroll] is

attempting to contest an election,” or to question the commissioners courts’

orders creating the school districts and their boundaries, Carroll’s objective is an

impermissible collateral attack, and “if” Carroll is attempting to change or modify

the judgments or orders of the commissioners courts to avoid the result of the

1948 and 1949 elections by now claiming the Disputed Area, this would be an

untimely election contest and collateral attack on the orders.          The only way

Carroll could do that is by seeking authority to actually “move” the Disputed Area

from one independent school district to another, according to Northwest. But this

is the very same faulty premise that we rejected in the first appeal and again in

our first opinion in this appeal, i.e., that Carroll is seeking to “move” the districts’

common boundary.

      To the extent that the majority is suggesting that Carroll is now seeking to

move the boundary line so as to render Carroll’s declaratory judgment action an

impermissible election contest or collateral attack on the 1949 and 1959 elections

and consolidation orders, it is in direct conflict with our holding in the first appeal

(involving the education code) that Carroll is not seeking to move the common

boundary of the two school districts. The majority’s assertion is also not correct

that Carroll claims that the school districts’ common boundary line should “move


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with” the counties’ common line. This is only what Northwest argues that Carroll

claims; it is not what Carroll claims. As we recognized in the prior appeal, Carroll

is not contending that the districts’ common boundary line should “move” with the

county line. Carroll ISD, 245 S.W.3d at 623.

      Most surprisingly, the majority incorrectly implies that Carroll is claiming

that the Tarrant-Denton County line itself was “moved” by this court in our 2002

decision. The county line was not “moved.” For the Tarrant-Denton county line

to have been “moved,” there must have been a prior location of the county line

established on the ground for it to have “moved” from.        Thus, the majority’s

implicit determination that Carroll is claiming that the county line was moved

interjects yet a new assumption, that there was a previously established

boundary line between the two counties. This assumption is the same argument

made by Denton County that we rejected in our 2002 decision establishing the

mutual Tarrant-Denton County line. 2



      2
       Carroll has consistently recognized since the outset of its suit that this
court did not “move” the Tarrant-Denton County line in 2002. See, e.g., Reply Br.
of Carroll in Carroll ISD v. Nw. ISD, No. 02-06-00242-CV, 2007 WL 532041, at *2
(Jan. 3, 2007) (“According to Northwest, we are ‘seeking to amend the
geographic boundaries separating [the two school districts].’ . . . But we are not
seeking to ‘amend’ the boundaries or to ‘transfer’ the Disputed Area. Rather, we
say that the county line has been the boundary between the two school districts
from the beginning.”); see also Carroll’s Appellee’s Br. in this appeal, Nw. ISD v.
Carroll ISD, No. 02-10-00105-CV, 2010 WL 3641581, at *21 (Aug. 31, 2010)
(contending that Northwest bases its argument on a “flawed premise—that the
decision in Tarrant County v. Denton County ‘moved’ the county line and that we
are now seeking to ‘move’ the school district boundary. . . . But under Tarrant
County v. Denton County, the county line did not move. Rather, in that case, this

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A repeat of history?

      Our 2002 decision set out a history of various attempts to survey and

establish portions of the Tarrant-Denton County line, including the crucial

northeast corner of Tarrant County that also served as the northwest corner of

Dallas County and the southeast corner of Denton County. Tarrant Cnty., 87

S.W.3d at 161–66.      Surveys were performed by surveyors William D. Orr in

1850, Warren A. Ferris in 1850, George White in 1852, and A.G. Walker in 1854.

Id. at 163–66. Because of inconsistencies in those surveys, the passage of time,

and deterioration and disappearance of virtually all markers, posts, and dirt

mounds as monuments set by White in 1852 (the only prior survey of the entire

common boundary between Denton and Tarrant Counties), which came to be

known as the “White line,” the exact location of the county line on the ground

remained uncertain through the years.

      Fast forwarding past other surveys and attempts by the counties to find the

location of the county line, Denton County requested assistance in 1984 from

Dallas and Tarrant Counties to determine the location of their southern county

line, and in 1986, those counties together with Collin County entered into an

agreement entitled “Interlocal Cooperation Agreement,” which stated that its

purpose was to ascertain and locate on the ground the northern boundaries of




Court held that the location of the county line had never been determined . . . .”
(emphasis added)).


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Dallas and Tarrant Counties and the southern boundaries of Denton and Collin

Counties. Id. at 166.

      An order of the Denton County Commissioners Court, entitled “Order

Providing for the Ascertainment of County Line,” approved the agreement, stating

“[t]here have been questions regarding the precise location of the boundary line

marking the northern boundary of Dallas County where it is common with the

southern boundary of Collin County, the southern boundary of Denton County

and the point where it is common with the northeastern corner of Tarrant County”

and that “‘it appears that said line is not sufficiently definite and well-defined’ but

that the line could be ascertained and that it is Denton County’s desire to

ascertain the location of the boundary line and to mark the same on the ground.”

Id. at 170 (emphasis added). By that agreement, each of the four counties,

including Denton County, agreed to hire surveyor Don Jackson to “ascertain by

actual survey the southern boundary of Denton County, Texas,” where it is

common with the northern boundary of Tarrant County and to mark and establish

said line and the southeastern corner of Denton County. Id.

      Jackson conducted his survey and prepared field notes locating the

boundaries and corners as specifically provided by the order and contracts for his

services. Id. at 171. Jackson’s field notes determined that Ferris and, therefore,

White, had erroneously located Dallas County’s northwest corner and, hence,

Tarrant County’s northeast corner and the projection of the counties’ mutual

boundary, some 2200 feet south and 1300 feet east of where it should have


                                          10
been, and he set and monumented those counties’ common corner per the

interlocal agreement. Id. at 171. The counties approved Jackson’s survey, and

Denton County forwarded it to the General Land Office with a cover letter from

the Denton County Judge stating that the Denton County Commissioners Court

had approved the reestablishment of the county line “due to an error in surveying

in the 1850’s.” Id. at 173.

      Shortly thereafter, Denton County denied the validity of the interlocal

cooperation agreement and denied that the Jackson survey established the

Tarrant-Denton County line pursuant to the agreement. Id. at 166. Instead,

Denton County took the position that the county line had been previously

established along the line that had been surveyed by George White in 1852 (the

White line). Id. Tarrant County then brought suit to determine the common

boundary between the two counties under section 72.009(a) of the Texas Local

Government Code. Id.; see Tex. Loc. Gov’t Code Ann. § 72.009(a) (West 2008).

Denton County counterclaimed, contending that the 1852 survey by George

White had been established under prior law as the true boundary line between

the counties. Tarrant Cnty., 87 S.W.3d at 166.

      Under section 72.009(a) of the local government code, a district court has

jurisdiction over a suit by a county against an adjacent county to establish the

location of a common boundary line, but only if the location of the county line has

not already been established under prior law.        Tex. Loc. Gov’t Code Ann.

§ 72.009(a), (b).     Denton County brought its counterclaim pursuant to


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subsection (b), which states that if a boundary has been established under prior

law, that boundary must be declared to be the “true boundary.” Tarrant Cnty., 87

S.W.3d at 166–67. The trial court rendered judgment in favor of Denton County,

declaring that the White line was the established common county line under prior

law.   Id. at 167.   We reversed, holding that, at the time of the interlocal

cooperation agreement among the four counties in 1986, the common boundary

between Tarrant and Denton Counties was not, by Denton County’s own

admission and agreement, previously established or “definite and well defined,”

and we further held that the White line relied upon by Denton County actually lay

somewhat to the south of the “true boundary” between the counties, which we

determined was the boundary located by surveyor Don Jackson, as agreed and

approved by both Tarrant and Denton Counties. Id. at 172, 175. Thus, this court

did not hold that the county line had been “moved.” Rather, we held that the

county line was not “sufficiently definite and well defined” and that the Interlocal

Cooperation Agreement settled that dispute as to the location of the county line.

Id. at 172, 173. 3


       3
        This court reversed the trial court’s judgment, which had adopted the
White line and rendered judgment in favor of Tarrant County based on the
validity of the Interlocal Cooperation Agreement and the counties’ orders
approving the agreement and the Jackson survey, and we remanded the cause
to the trial court for entry of judgment adopting the Jackson survey and for entry
of any other orders necessary for resurveying and remarking the boundary. Id. at
179–80. On remand, the trial court signed a modified and corrected judgment on
April 6, 2004, appointing Garey Gilley to perform the resurvey and remarking of
the boundary. We dismissed an appeal by Denton County from that judgment for
want of jurisdiction. Denton Cnty. v. Tarrant Cnty., 139 S.W.3d 22, 24 (Tex.

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      If the White line had been established as the mutual county line on the

ground under prior law, the trial court would not have had jurisdiction under

section 72.009(a) of the local government code over the suit for declaratory

judgment brought by Tarrant County that resulted in our 2002 decision

establishing the true location of the county line. We determined that there was

no such location established on the ground prior to this court’s 2002 decision,

which finally—and for all time—established the true location of the Tarrant-

Denton County line.

      The majority states that in 2003, after our decision in Tarrant County but

before the trial court had entered its modified judgment for the resurvey in

accordance with our mandate, Northwest filed what the majority describes as the

“long-existing districts’ boundary line metes and bounds description” with the

TEA in accordance with the education code “to protect itself” (from what, the

majority does not say). This is not a correct description of Northwest’s 2003

resolution. As we specifically stated in our opinion on the first appeal in this

case, the resolution filed by Northwest in 2003 unilaterally “purported to establish

the school district’s southern boundary by a metes and bounds description that


App.—Fort Worth 2004, pet. denied). While that appeal was pending, the trial
court signed an order appointing an additional surveyor to assist Gilley and to
“reconfirm and verify” his work. We conditionally granted a writ of mandamus
sought by Tarrant County to require the trial court to vacate that order. In re
Tarrant Cnty., No. 02-05-00274-CV, 2005 WL 3436582, at *1, 4 (Tex. App.—Fort
Worth Dec. 12, 2005, orig. proceeding [mand. denied]) (mem. op.). While that
proceeding was still pending, this suit was filed by Carroll ISD on March 1, 2005.


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appears to follow what is known as the ‘White line.’” Carroll ISD, 245 S.W.3d at

622 (emphasis added). But, just months before, we had rejected the White line

as the true boundary line between the counties in Tarrant County v. Denton

County. Tarrant Cnty., 87 S.W.3d at 179–80. Carroll countered Northwest’s

resolution with a letter to the TEA stating that the northern boundary of its district

followed the true county line as established by our 2002 decision in Tarrant

County v. Denton County and then filed this suit to resolve the district boundary

dispute from whence these interlocutory appeals from orders on pleas to the

jurisdiction by Northwest have emanated. I would overrule Northwest’s three

issues, affirm the current order denying Northwest’s second plea to the

jurisdiction, and remand the cause to the trial court.

      This leads me to the other concurring and dissenting opinion on this

appeal, which inexplicably says the majority opinion holds that Carroll is barred

“from asking the trial court on remand for a declaration that the county line

established in [the 2002 Tarrant County-Denton County decision] is the district

boundary line.” I find no hint in the majority opinion that it holds any such thing.

If it could possibly be interpreted to so hold, I would vehemently disagree.

      The other concurring and dissenting opinion also states that Carroll has

not asserted that the districts’ dispute where the boundary line is and always has

been, nor has it requested a declaration as to about the location of the boundary

line. But that is precisely what Carroll asserts and claims. On the first appeal,

we carefully analyzed Carroll’s pleadings and concluded that Carroll was seeking


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“a judicial declaration regarding whether the Disputed Area is in the Carroll ISD

or the Northwest ISD”; that the two districts “have always defined their joint

boundary as coterminous with the Tarrant-Denton County line; that a court has

determined that the county line is farther north than the two school districts

previously believed; and that, consequently, a boundary dispute has arisen” and

that “the relief [Carroll] seeks is not detachment and annexation but a judgment

resolving the boundary dispute by declaring what the parties’ rights, interests,

and obligations are in the Disputed Area.” Carroll ISD, 245 S.W.3d at 624–25

(footnote omitted). We reiterated that Carroll seeks only a judicial determination

regarding in which of these districts the Disputed Area is and always has been

located. Id. While I fully agree that Carroll cannot seek to avoid, nullify, or

change the elections or orders of the commissioners courts, nor may it actually

move the Disputed Area from one independent school district to another, I

disagree that Carroll is attempting to do so, and I dissent from the majority’s

sustaining of Northwest’s third issue to that extent.       I join in the majority’s

overruling of the remainder of Northwest’s third issue.

      For all of the reasons stated above and in our opinion on the prior appeal

in this case as well as in Tarrant County v. Denton County, I would overrule

Northwest’s three issues, affirm the trial court’s denial of Northwest’s plea to the




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jurisdiction, and remand the cause for further proceedings in accordance with our

opinion.

                                                 /s/ Anne Gardner

                                                 ANNE GARDNER
                                                 JUSTICE

WALKER and GABRIEL, JJ., join.

DELIVERED: June 19, 2014




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