       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-19-00304-CV


                                 The State of Texas, Appellant

                                                v.

  City of Double Horn, Texas; Cathy Sereno; R. G. Carver; Bob Link; James E. Millard;
             Larry Trowbridge; Glenn Leisey; and John Osborne, Appellees


               FROM THE 424TH DISTRICT COURT OF BURNET COUNTY
            NO. 49209, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                                          OPINION


               The State of Texas complains of the trial court’s order denying its petition for

leave to file an information in the nature of quo warranto, seeking to challenge the City of

Double Horn’s incorporation as a municipality. See Tex. Civ. Prac. & Rem. Code §§ 66.001–.003

(governing quo warranto suits). Appellees are the City of Double Horn and its elected officials.1

Because we conclude that the State’s petition for leave stated a probable ground for a quo

warranto proceeding, we will reverse the trial court’s order dismissing the State’s petition and

remand this cause for further proceedings.


                                        BACKGROUND

               The State filed its “Petition for Leave to File an Information in the Nature of Quo

Warranto” seeking to “declare the incorporation of the City of Double Horn, Texas, invalid and
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           In this opinion, we will refer to the City of Double Horn as “the City” and the City and
its officials, collectively, as “Double Horn.”
void for failure to comply with statutory requirements for incorporation and to remove the

officers of the City of Double Horn from office.” The State alleged that the City’s incorporation

as a Type-B general-law municipality did not meet two statutory requirements: (1) that the

community intending to incorporate constitutes an unincorporated town or village prior to

incorporation, and (2) that the proposed boundaries include only the territory to be used strictly

for municipal purposes. See Tex. Loc. Gov’t Code §§ 7.001(1), .002(b).

               The State attached to its petition an “Information in the Nature of Quo Warranto,”

verified by its counsel, and several exhibits. The State’s petition and information alleged the

following relevant facts:


   •   Prior to incorporation, the City of Double Horn was a subdivision of approximately
       92 homes in Burnet County, west of Spicewood, Texas on the north side of Texas
       State Highway 71.

   •   The subdivision consists of homesites and a single common area that includes a
       community pool and covered outdoor pavilion.

   •   The subdivision has no wastewater utility; the homes rely on septic.

   •   The subdivision obtains its water from wells, and the water is delivered by the
       Double Horn Creek Water Supply Corporation, but water is not provided to the
       property owned by Spicewood Crushed Stone LLC (SCS).

   •   SCS owns approximately 281 acres of rural undeveloped land adjacent to the
       eastern boundary of the subdivision. SCS plans to use the tract for quarry operations
       after obtaining all required permits.

   •   Upon learning of the proposed use for the SCS tract, some residents of the Double
       Horn subdivision began considering incorporation as a means to stop SCS from
       operating a quarry on its land.

   •   The incorporated City of Double Horn includes within its boundaries the Double
       Horn subdivision and SCS’s property.

   •   The Double Horn subdivision was just that: it was a residential subdivision, not a
       “town” or “village.” It has no stores. The only businesses include a process service

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       company and a storage building located along State Highway 71. It has no
       churches. It lacks a school. It lacks a gas station with a convenience store. It even
       lacks a public building that the residents can use for city business. To conduct
       city business, officials are left to the choice of the open-air pavilion, the pool area,
       or someone’s living room.

   •   Even if the subdivision could have been considered an existing town or village,
       SCS’s property was not part of it. SCS’s property is rural in character. It is
       agricultural land, not urban land. There is no unity between SCS’s land and the
       Double Horn subdivision. SCS’s land is not part of a compact center or nucleus
       of population.

   •   [L]and within the town must be susceptible of receiving some municipal services
       [to constitute a town or village]. . . . There is no evidence whatsoever that the City
       of Double Horn (or the residents of the prior subdivision) intends to provide its
       commercial residents any services typically provided by cities. There is no central
       wastewater facility to connect to SCS property. There is no stated plan to connect
       water service to SCS property. There is no stated plan to allow SCS to partake in
       the road improvement projects available to the subdivision or connect the property
       to the rest of the community. [Citation omitted.] There is no stated plan to create
       and provide police, fire, or other emergency services to the city or to SCS.

   •   Land cannot be included within a town solely for tax purposes. [Citation omitted.]
       If the city remains incorporated, and assuming the city will exercise its authority
       to tax the property within its boundaries, SCS will be subject to city taxes without
       receiving any corresponding public benefit. SCS will be the largest landowner (and
       taxpayer) in town. In fact, it will be in the position of funding the city’s effort to
       block SCS’s project. No one has any expectation that SCS’s property will be
       developed as part of the city. In fact, the only apparent purpose of the city’s
       incorporation is to prevent the development of the SCS property.

   •   This is not a case where the proposed town residents anticipate commercial
       development to serve the community. On the contrary, the residents have included
       land that they know will not be developed as part of the city. Texas case law since
       1891 has stated that residents cannot include undeveloped land that they know
       will not eventually be developed for municipal purposes.


               Double Horn filed a response in opposition to the State’s petition for leave and,

subject thereto, answered the lawsuit. After a hearing on the matter, at which the trial court

admitted several exhibits offered by Double Horn, the trial court signed an order denying the

State’s petition for leave and dismissing its lawsuit.

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                                  STANDARD OF REVIEW

               We review a trial court’s denial of leave to file an information in the nature of quo

warranto for an abuse of discretion. State ex rel. Manchac v. City of Orange, 274 S.W.2d 886,

888 (Tex. App.—Beaumont 1955, no writ) (citing State ex rel. Eckhardt v. Hoff, 31 S.W. 290,

290–91 (Tex. 1895)); State ex rel. Thornhill v. Huntsaker, 17 S.W.2d 63, 65 (Tex. App.—

Amarillo 1929, no writ). A trial court abuses its discretion if it acts without reference to any

guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). It also abuses its discretion if it either

fails to analyze the law properly (e.g., uses an improper legal standard) or fails to apply the law

properly to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).


                                         DISCUSSION

               In its first issue, the State contends that the trial court erred in considering the

ultimate merits of its case, rather than merely determining whether its pleadings showed a

probable ground to file the information. The State’s remaining three issues involve evidentiary

rulings the trial court made sustaining Double Horn’s objections to the State’s verified

information and attached exhibits and the trial court’s admission and consideration of evidence

offered by Double Horn at the hearing.


Quo warranto proceedings generally

               A quo warranto lawsuit is one “through which the State acts to protect itself and

the good of the public generally.” Fuller Springs v. State ex rel. City of Lufkin, 513 S.W.2d 17,

19 (Tex. 1974); see also Newsom v. State, 922 S.W.2d 274, 277 (Tex. App.—Austin 1996, writ

denied) (“In the modern context, the State uses quo warranto actions to challenge the authority to


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engage in certain practices specifically enumerated by statute.”). Quo warranto proceedings

are authorized by statute, see Tex. Civ. Prac. & Rem. Code §§ 66.001–.003, and have existed

under the common law for centuries, see Banton v. Wilson, 4 Tex. 400, 406 (1849) (recognizing

quo warranto as “the ancient method of proceeding against those who exercised franchises in

derogation of the rights of the crown”). Chapter 66 of the Civil Practice and Remedies Code

governs quo warranto proceedings, and the State alleges that two of the nonexclusive reasons

authorized thereunder are applicable here: (a) when “a person usurps, intrudes into, or unlawfully

holds or executes a franchise or an office,” including a municipal office; and (b) when “an

association of persons acts as a corporation without being legally incorporated.” See Tex. Civ.

Prac. & Rem. Code § 66.001(1), (3).

               The State commonly uses quo warranto proceedings against municipalities to

challenge the validity of their incorporation.       See, e.g., Fuller Springs, 513 S.W.2d at 18

(challenging incorporation of city based on alleged prior annexation of land by adjacent city);

City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 724 (Tex. 1971)

(challenging municipal annexation); Gonzales v. Concerned Citizens of Webberville, 173 S.W.3d

112, 119 (Tex. App.—Austin 2005, pet. denied) (describing when quo warranto is necessary to

challenge municipal incorporation); Harang v. State ex rel. City of West Columbia, 466 S.W.2d 8,

13 (Tex. App.—Houston [14th Dist.] 1971, no writ) (holding that trial court did not err in

permitting State to file information on relation of neighboring cities to challenge municipal

incorporation). The State also uses quo warranto proceedings to oust municipal officers who

unlawfully hold office or exercise power. See, e.g., Largen v. State ex rel. Abney, 13 S.W. 161, 163

(Tex. 1890) (holding that municipal officers were not entitled to hold office); State v. De Gress,

53 Tex. 387, 401 (1880) (holding that district court erred in dismissing quo warranto lawsuit

                                                 5
challenging right of city mayor to hold office); State v. Fischer, 769 S.W.2d 619, 622 (Tex.

App.—Corpus Christi–Edinburg 1989, writ dism’d w.o.j.) (holding that probable ground existed

for county attorney pro tem to challenge eligibility of candidate for office of county attorney).

                The attorney general or county or district attorney of the proper county initiates a

quo warranto suit by petitioning the district court “for leave to file an information in the nature of

quo warranto.” Tex. Civ. Prac. & Rem. Code § 66.002(a). The trial court “shall grant leave to

file the information, order the information to be filed, and order process to be issued” if there is

“probable ground” for the proceeding. Id. § 66.002(d); see also Tex. R. Civ. P. 780 (“When such

information is filed, the clerk shall issue citation as in civil actions, commanding the defendant to

appear and answer the relator in an information in the nature of a quo warranto.”). A quo warranto

suit is a civil proceeding governed by the rules applicable to all civil actions. Gifford v. State

ex rel. Lilly, 525 S.W.2d 250, 252 (Tex. App.—Waco 1975, writ dism’d by agr.); see Tex. R.

Civ. P. 781 (stating that defendant in quo warranto is “entitled to all the rights in the trial and

investigation of the matters alleged against him, as in cases of trial in civil cases in this State”).


Proper standard for determining whether the State showed a probable ground

                In its first issue, the State contends that the trial court erred in dismissing its

petition because the court considered the ultimate merits of the case rather than merely

determining whether the State showed a probable ground to file its information. See Tex. Civ.

Prac. & Rem. Code § 66.002(a) (“If grounds for the remedy exist, the attorney general or the

county or district attorney of the proper county may petition the district court of the proper

county . . . for leave to file an information in the nature of quo warranto.”). The State contends that

the trial court erred by applying “the wrong pleading standard and failing to accept its allegations


                                                   6
as true” in determining whether it had a probable ground to bring this action. “If there is

probable ground for the proceeding, the judge shall grant leave to file the information, order the

information to be filed, and order process to be issued.” Id. § 66.002(d) (emphasis added).

               Double Horn counters that quo warranto is an “extraordinary remedy,” holding

the State to a higher burden to obtain leave of the district court to file the information—a burden

requiring the trial court to consider evidence submitted by the parties and to make a probable-

ground determination based thereon. Double Horn argues that because the trial court properly

sustained its objections to the State’s verification and inadmissible evidence and properly

admitted the evidence offered by Double Horn, the State failed to meet its evidentiary burden to

show a probable ground to file its information.

               Significantly, no statute, rule, or caselaw explicitly requires the State to verify its

petition or support it with evidence. Cf. id. §§ 66.001–.003 (outlining no such requirements);

Tex. R. Civ. P. 93 (not including quo warranto in list of pleadings that “shall be verified by

affidavit”), 779–782 (outlining no such requirements); Hunnicutt v. State, 12 S.W. 106, 108

(Tex. 1889) (noting that if State files information in nature of quo warranto not on relation of

another but on its own behalf, “it would seem that [the State’s] official statement, unsworn,

would be sufficient to authorize a judge to direct an information be filed”); Alamo Club v. State,

147 S.W. 639, 640 (Tex. App.—San Antonio 1912, writ ref’d) (noting that quo warranto statutes

did not require verified petition). Rather, as contended by the State and determined by our sister

courts, the trial court must accept as true the allegations contained in the State’s petition in

making its probable-ground determination and “need only find that the petition stated a cause of

action to proceed.” Ramirez v. State, 973 S.W.2d 388, 393 (Tex. App.—El Paso 1998, no pet.);

see Fisher, 769 S.W.2d at 622 (“For the purpose of determining whether probable ground exists

                                                  7
to support this proceeding, we will accept as true the allegations contained in the State’s petition.

If the petition states a cause of action, then the trial court did not err in granting permission to

file it.”); City of Orange, 274 S.W.2d at 888 (“If the petition sought to be filed states a cause of

action, the court was in error in refusing permission to file it. We therefore look to the petition to

determine its sufficiency.”).

               While no caselaw specifically defines the phrase “probable ground” in this

context, it follows from the above-cited authorities that specific factual allegations of conduct

that, if true, would entitle the State to the relief it seeks qualify as adequately stating a cause of

action under the probable-ground test. If the State’s allegations, taken as true, state a cause of

action for quo warranto, the trial court has no discretion but to grant leave to file the information.

See Ramirez, 973 S.W.2d at 393; Fisher, 769 S.W.2d at 622; City of Orange, 274 S.W.2d at 888;

see also Tex. Civ. Prac. & Rem. Code § 66.002(d).

               We reject Double Horn’s attempt to analogize the trial court’s role at the petition-

for-leave stage to its role in determining whether it has subject-matter jurisdiction, arguing that

the trial court must “screen [a petition] for jurisdiction” by considering evidence and citing Bland

Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (“[A] court deciding a

plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence

and must do so when necessary to resolve the jurisdictional questions raised.”). The analogy is

inapposite, as the question of whether a trial court must grant leave to file an information in

quo warranto is not a jurisdictional question, and a court’s jurisdiction does not turn on the

sufficiency of evidence to support a claim. Rather, jurisdiction is a question of whether a

court has “the constitutional or statutory authority to decide the case.” Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also State Bar of Tex. v. Gomez,

                                                  8
891 S.W.2d 243, 245 (Tex. 1994) (“As a general proposition, before a court may address the

merits of any case, the court must have jurisdiction over the party or the property subject to the

suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and

capacity to act as a court.”). There can be no reasonable contention that the trial court does not

have jurisdiction over quo warranto proceedings as the legislature has specifically authorized

district courts to adjudicate the proceedings. See Tex. Civ. Prac. & Rem. Code § 66.002(a).

                Accordingly, we hold that the proper standard for determining whether a petition

for leave to file an information in the nature of quo warranto has stated a probable ground is

whether the facts alleged in the State’s petition, taken as true, state a cause of action for which

the quo warranto statute provides a remedy. See Ramirez, 973 S.W.2d at 393; Fisher, 769 S.W.2d

at 622; City of Orange, 274 S.W.2d at 888; see also Tex. Civ. Prac. & Rem. Code § 66.002(d).

To the extent that the trial court applied a different standard, it erred.


Whether the State met its burden to show a probable ground

                Having identified the proper standard a trial court must apply when ruling on a

petition for leave to file an information in the nature of quo warranto, we consider whether the

State’s allegations, taken as true, stated a probable ground for this action.

                To prevail on its claim that the City was invalidly incorporated, the State needs to

prove that (1) the Double Horn subdivision did not “constitute[] an unincorporated town or

village” prior to incorporation, see Tex. Loc. Gov’t Code § 7.001(1); and (2) the boundaries of

the incorporated area do not “contain[] only the territory to be used strictly for municipal

purposes,” id. § 7.002(b); see State ex rel. Needham v. Wilbanks, 595 S.W.2d 849, 851 (Tex.

1980) (“The purpose of the incorporation statutes is not to create towns and villages, but to allow


                                                   9
those already in existence to incorporate. Incorporation contemplates the existence of an actual

village, town, or city.”).

                The State’s petition alleged that the City lacked the characteristics of a village,

town, or city prior to incorporation. As outlined in detail above, the State specifically alleged

that the City was merely a rural subdivision of homes lacking any of the businesses or

institutions typical of towns and villages and that the incorporated area is not susceptible to

municipal services. See Rogers v. Raines, 512 S.W.2d 729–30 (Tex. App.—Tyler 1974, writ

ref’d n.r.e.) (noting that village is “an assembly of houses less than a city, but nevertheless urban

or semi-urban in its character, and having a density of population greater than can usually be

found in rural districts” and has “compact center or nucleus of population around which a town

has developed” and municipal services (citation omitted)); Harang, 466 S.W.2d at 11 (noting

that, to constitute town or village, area should have “an urban character as distinguished from a

rural character,” “[t]here should be some degree of unity and proximity between the habitations

so assembled . . . [, and] the area . . . should be susceptible of receiving some municipal services”).

                Additionally, the State’s petition made specific factual allegations contesting that

the City intended to use all of the territory included in the municipality for strictly town

purposes. See Harang, 466 S.W.2d at 11 (affirming trial court’s judgment on jury’s verdict that

“those who petitioned for the incorporation of the village of Wild Peach did not intend to use

all of the territory incorporated for strictly town purposes” and, thus, that incorporation was

invalid); State ex rel. Mobray v. Masterson, 228 S.W. 623, 630–31 (Tex. App.—Beaumont 1921,

writ ref’d) (reversing trial court’s finding that city was properly incorporated because evidence

demonstrated that municipal area could not be used strictly for municipal purposes); see also

Noel v. State ex rel. Lufkin Indus., Inc., 545 S.W.2d 843, 845 (Tex. App.—Beaumont 1976,

                                                  10
writ ref’d n.r.e.) (noting that whether area sought to be included in incorporated city is intended

to be used strictly for town purposes is question of fact (citing State ex rel. Perrin v. Hoard,

62 S.W. 1054, 1055–56 (Tex. 1901)). As outlined above, the State alleged that the City included

the SCS property in its incorporation even though the SCS property would not be used strictly

for municipal purposes, would not be developed as part of the City, and is not susceptible to

receiving any municipal services such as water, wastewater, or road improvements.

               Having reviewed the State’s factual allegations, we conclude that the State

sufficiently stated a claim for relief on its claim of invalid incorporation and, thus, a probable

ground for a quo warranto proceeding. The State’s allegations also support its claim at this

petition-for-leave stage that the City officials are unlawfully acting as a municipal corporation, as

the officials’ authority necessarily flows from the City’s authority. Therefore, we need not further

discuss the State’s second claim, alleging that the city officials are unlawfully holding office.

               We sustain the State’s first issue and hold that the trial court abused its discretion

in denying the State’s petition for leave to file its information in the nature of quo warranto.

Because of our disposition of the State’s first issue, we need not address its additional complaints

about the trial court’s evidentiary rulings and consideration of Double Horn’s evidence. See Tex.

R. App. P. 47.1, .4.


                                         CONCLUSION

               Because the State’s petition for leave stated a probable ground for a quo warranto

proceeding, we hold that the trial court erred in dismissing the State’s petition for leave to file

an information in the nature of quo warranto and remand this cause for further proceedings

consistent with this opinion.


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                                            __________________________________________
                                            Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Reversed and Remanded

Filed: October 30, 2019




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