                           NUMBER 13-09-00246-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


RIO BRAVO SUBDIVISION PROPERTY OWNERS
ASSOCIATION, ON BEHALF OF 203 QUALIFIED
VOTERS IN THE RIO BRAVO SUBDIVISION AND
THE SAID 203 QUALIFIED VOTERS,                                          Appellants,

                                          v.

CITY OF BROWNSVILLE, TEXAS,                                               Appellee.


                  On appeal from the 107th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
             Memorandum Opinion by Chief Justice Valdez

      In this appeal, appellants, Rio Bravo Subdivision Property Owners Association, on

behalf of 203 qualified voters in the Rio Bravo Subdivision, and the said 203 qualified
voters1 (collectively referred to as “Rio Bravo”), complain about a summary judgment

granted in favor of appellee, the City of Brownsville (the “City”), which denied Rio Bravo

relief pertaining to its petition for disannexation and declaratory relief brought under section

43.141 of the local government code. See TEX . LOC . GOV’T CODE ANN . § 43.141 (Vernon

2008). By two issues, which we construe as one, Rio Bravo contends that the trial court

erred in granting the City’s motion for summary judgment because the City acted in bad

faith by failing to provide “additional or new services” to Rio Bravo after annexation. We

affirm.

                                              I. BACKGROUND

          On November 5, 2002, the City annexed the Rio Bravo Subdivision. In 2005, a

majority of the registered voters residing in the subdivision filed a petition for disannexation
          1
           Only 156 voters are identified in the record. The 156 voters are identified as: Jam es E. Regan;
Margie Jane Regan; Norm an Elwood Kight; Russell Leibundgut; Charles A. Morgan, Jr.; Zonda Ione Morgan;
Joseph John O’Mara; Ronald J. Herfindahl; Gerald D. Short; M arilyn J. Short; Paul J. Slenk; Thom as D.
Heuerm an; Karen L Heuerm an; George W . W hitaker; Donis Ilene W hitaker; Keith E. Bell; Edwad J.
Radem acher; Magdalen Radem acher; Patricia Jane Fry; Jam es D. Payne; Ron G. Brown; Bruce A. W atts;
W illiam M. Moline; Joan M. Moline; Bobby G. W ood; Altonette L. W ood; Teresa Barton Holloway; Marvin D.
Basye; Pam ela S. Basye; Joan Lorene Robinson; Gail E. Peterson; W illiam C . Cronin; Shanon K. Cronin;
John Alden Colem an; Thom as M. Fowler; Janet Jean Stowe; Edward F. Bares; Gail C. Bares; Dale R. Fields;
Mary Ellen Fields; Robert D. Roberts; W infred Riddle; Charles E. Stowe. Jr.; Russell R. Zim m erm an; John
H. Meyers; Jutta E. Doersam ; Donald L. Shafer; Roxann Shafer; Alan Thom s Jam es; Joseph E. Travis; Janice
M Travis; Thom as C. Hartm an; Helen A. Jam es; Gene E. Mehrtens; Elizabeth A. Mehrtens; Donald E.
Holm es; Mary C. Holm es; Jose Alvarez, Jr.; Roberta D. Alvarez; Gerald P. Olsen; Genevieve D. Olsen; Dean
I. Moon; Colleen A. Moon; Elroy G. Meyer; Beata R. Meyer; Jam es E. Link; Norm a J. Link; Karl H. Colem an;
Priscilla A. Colem an; W illis G. Apt; Anne M. Apt; David M. Scott; Patricia J. Scott; Richard L. Menard; Shirley
C. Menard; John R. Mapel; Ronald W . Johnson; Jack E. Davis; Betty R. Henning; Robert L. Nowak; Maxine
J. Nowak; Douglas R. Keene; Betty Keene; Stanley G. Coates; Mary A. Beard; Lawrence B. Schm itt; Joanne
M. Meyers; Aloysius Meyers; Tyler D. Collins; Hazel Leanita Colem an; Luther L. W atson; Glenda K. Berger;
Ann W illiam s Shepperd; Benny M. Berger; Doris Irene George; John Lloyd George; Juanita Vaughan; Allen
John Freund; Anita Lenore Freund; Im ogene Morgan; August E. Morgan; John Arthur W inn; Helen Catherine
W inn; Joel Zapata; Marlys Zapata; Ellen Kathleeen Anderson; Lester D. Cowger; Patricia Ann Cowger; Ray
Edward Church; Betty Jo Johnson; Earl George Sneath; Alice Marie Sneath; J. Robert Buckley; Beverly W .
Buckley; Glen Mullikin; Mary Ann W atson; Fred Charles Mottson; Ellen Marie Elfrank; Dale Colberg; Robert
Mitchell Am an; Jam es Burcham ; Laura Ann Osgood; Elda M. Corbit; Edward Allan Zeppelin; Richard Grant
Peterson; Francis Duane Richm an; Mary Alice Zim m erm ann; Ira F. W atkins; Jackie Newell Bearrow; Barbara
Idelle Bearrow; Jan A Pausewang; Irene T. Zeppelin; David C. Odle; Allison Odle; Raym ond Jam es Kirk; Lois
Harriet Kirk; Dale Eugene Stevens; Nancy Lee Stevens; Herbert D. C am pbell; Melvin Eugene Ham m ond;
Dianne Lynn Ham m ond; Maurice D. Miller; Sara W . M iller; G erald R. Crisp; Alice Lorraine Crisp; Leonard
Vihorio Gionnetti; Richard Ray May; Julie A. May; Frederick Dwight Stephens; Barbara J. Stephens; Bobby
Gene Taylor; Burrell L. W alters, Jr.; John Thom as Head; and Nadine Hargraves.
                                                       2
with the City alleging that the City failed to provide services to the subdivision. See id. §

43.141(a). The City failed to act upon Rio Bravo’s petition for disannexation within sixty

days after having received it; thus, Rio Bravo petitioned the local district court to request

that the subdivision be disannexed. See id. § 43.141(b) (providing that “[i]f the governing

body fails or refuses to disannex the area within 60 days after the date of the receipt of the

petition, any one or more of the signers of the petition may bring a cause of action in

district court . . .”). This petition alleged that the City failed to provide services and acted

in bad faith because “the City failed to provide additional or new services to the annexed

area . . . .” The petition sought, in part, a judgment “[d]eclaring that under the said Petition

and/or Section 43.141 of the Texas Local Government Code, Rio Bravo is entitled to the

disannexation of the said area . . . .”

       On September 26, 2006, Rio Bravo filed a motion for summary judgment. On

January 24, 2007, the City filed a competing motion entitled “Supplemental Motion for

Summary Judgment or in the Alternative, Plea to the Jurisdiction.”             The trial court

subsequently denied the City’s plea to the jurisdiction on governmental immunity grounds.

On interlocutory appeal, this Court affirmed the trial court’s order. City of Brownsville v. Rio

Bravo Subdivision Prop. Owners Assoc., No. 13-07-554-CV, 2008 WL 384371, at **3-4

(Tex. App.–Corpus Christi Feb. 14, 2008, no pet.) (mem. op.).

       On January 9, 2009, both parties appeared for jury trial; however, after

“announcements,” attorneys from both parties met in chambers with the trial court judge

to discuss various pre-trial motions. Stipulations, signed on February 6, 2009 by both

parties, were entered into evidence and considered by the trial court.            The parties

stipulated, in pertinent part:

                                               3
      3)     [Rio Bravo] stipulate[s] that the City . . . complied with all procedural
             steps for municipal annexation . . . . [Rio Bravo] do[es] not challenge
             the legality of said annexation.

      4)     Municipal disannexation is being sought by [Rio Bravo] solely
             pursuant to [Texas Local Government Code section] 43.141 for failure
             to provide additional or new municipal services to the Rio Bravo
             Subdivision.

             ....

      12)    [Rio Bravo] timely filed this suit for disannexation for failure to provide
             additional or new municipal services under [Texas Local Government
             Code section] 43.141 . . . . [Rio Bravo] do[es] not contend in this
             petition that [the City] failed to provide services as set forth in the
             municipal service plan, but rather that the City could not provide them
             services which were new or different than that which they were
             already receiving before municipal annexation. The City contends
             that they fully complied with the service plan and met their legal
             obligations to provide municipal services to the annexed area.

             ....

      14)    The annexed area in question falls within an area served by a
             certificate of convenience and necessity by the TCEQ (Texas
             Commission for Environmental Quality) to the Valley MUD No. 2 for
             sewer and water. Those utilities have not granted permission to [the
             City] to provide water or sewer utilities within the areas to which they
             hold the exclusive Certificates of Convenience and Necessity. This
             legally prohibits the City from providing water and sewer utilities in
             these areas.

             ....

      17)    [Rio Bravo] stipulate[s] that the City did provide certain municipal
             services after annexation (as set forth in this stipulation), and that the
             services which were provided (again, as set forth in this stipulation)
             were provided within the time frames set forth by the municipal
             service plan and as specified by [Texas Local Government Code
             section] 43.056 . . . .

The parties stipulated that the following entities would provide municipal services:

                               Before Annexation                After Annexation

                                              4
Police                      Cameron County Sheriff’s      City of Brownsville Police
                            Office                        Department
Fire                        City of Brownsville Fire      City of Brownsville Fire
                            Department under an           Department
                            interlocal agreement with
                            Cameron County
                            Emergency Services
                            District No. One.
Emergency Medical           City of Brownsville Fire      City of Brownsville Fire
Services                    Department under an           Department
                            interlocal agreement with
                            Cameron County
                            Emergency Services
                            District No. One.
Solid Waste Collection      Privately contracted          City of Brownsville through
                            through the County            a private contractor paid
                                                          for by the City
Operation and               Valley Municipal Utility      Valley Municipal Utility
Maintenance of Water and    District No. 2 under a        District No. 2 under a
Sewer Utilities             Certificate of Convenience    Certificate of Convenience
                            and Necessity issued by       and Necessity issued by
                            TCEQ                          TCEQ


Maintenance of Public       The State of Texas            The State of Texas
Roads and streets           maintains all state roads.    maintains all state roads.
including road and street
lighting                    Cameron County, Texas         The City of Brownsville
                            maintains all other public    maintains all public
                            roads.                        streets, roads, and
                                                          roadways.

                            Rio Bravo maintains some      Rio Bravo maintains some
                            purely private drives which   purely private drives which
                            are not public streets and    are not public streets and
                            which have never been         which have never been
                            dedicated to public use.      dedicated to public use.
Operation and               Cameron County                City of Brownsville
maintenance of any other
public service



                                         5
       In light of the above stipulations, the trial court determined that there was no

genuine issue of material fact and granted the City’s motion for summary judgment while

simultaneously denying Rio Bravo’s competing motion for summary judgment. This appeal

ensued.

                                 II. STANDARD OF REVIEW

       The standards of review under which we review traditional and no-evidence motions

for summary judgment are distinct; therefore, we must determine the type of summary

judgment at issue. See Circle X Land and Cattle Co., Ltd. v. Mumford Indep. Sch. Dist.,

No. 14-09-00330-CV, 2010 WL 3409597, at *2 (Tex. App.–Houston [14th Dist.] Aug. 31,

2010, no. pet. h.). In the present case, Rio Bravo’s appellate briefing neither states the

applicable standard of review nor indicates whether the motion for summary judgment

being appealed is a traditional, no-evidence, or hybrid motion. See TEX . R. CIV. P. 166a(c)

(providing that in a traditional motion for summary judgment, the movant has the burden

of showing that there is no genuine issue of material fact and it is entitled to judgment as

a matter of law), 166a(i) (setting out that in a no-evidence motion for summary judgment,

a party may move for summary judgment without presenting summary judgment evidence

“on the ground that there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial”); see also Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) (explaining that when a party

moves for summary judgment under both rules 166a(c) and 166a(i), “[we] first review the

trial court’s summary judgment under the standards of rule 166a(i)”).

       The City’s motion for summary judgment states that it is filed pursuant to Texas Rule



                                             6
of Civil Procedure “166a and 166(i).”2 A traditional motion for summary judgment is

granted where the movant shows that “there is no genuine issue of material fact” and that

he is “entitled to judgment as a matter of law on the issues expressly set out in the motion

or in an answer or any other response.” TEX . R. CIV . P. 166a(c). The City’s motion for

summary judgment mentions that there is “no evidence” that the City failed to comply with

the service plan prepared for Rio Bravo; however, the arguments raised within the motion

do not advance this contention and instead, focus on proving that there is no genuine issue

of material fact and that the City is entitled to judgment as a matter of law.3 Moreover, after

considering the stipulations, the trial court expressly found in its order granting final

summary judgment that “there is no genuine issue as to any material fact in this case” and

that the City “is entitled to summary judgment (in its favor) as a matter of law on the issues

raised by the pleadings in this case.” Accordingly, we construe the City’s summary

judgment motion to be a traditional motion. See id.

        We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Branton v. Wood, 100 S.W.3d 645, 646

(Tex. App.–Corpus Christi 2003, no pet.). The evidence is reviewed in the light most

favorable to the non-movant, and the moving party bears the burden of proof of showing

that there is no genuine issue of material fact and that he is entitled to judgment as a

matter of law. TEX . R. CIV. P. 166a(c); see Fielding, 289 S.W.3d at 848; see also Branton,


        2
          W e note that Rule 166(i) does not pertain to sum m ary judgm ents. See T EX . R. C IV . P. 166(i)
(providing that the trial court m ay direct the attorneys for the parties to appear before it for a conference to
consider the exchange of a list of expert witnesses who the parties will call to testify at trial). Presum ably, the
City intended to cite Texas Rule of Civil Procedure 166a(c) and 166a(i). See id. at R. 166a(c), (i).

        3
          The City’s m otion for sum m ary judgm ent states, “This Motion is filed as . . . a Motion for Sum m ary
Judgm ent, pursuant to TRCP 166(a). . . . [T]he Defendant would show that there is no issue of m aterial fact,
and this Defendant is entitled to judgm ent as a m atter of law.”
                                                         7
100 S.W.3d at 646. When both parties file motions for summary judgment and the court

grants one and denies the other, we must decide all questions presented and render the

judgment that the trial court should have rendered. City of Garland v. Dallas Morning

News, 22 S.W.3d 351, 356 (Tex. 2000); see also Netrana, L.L.C. v. TXU Bus. Servs. Co.,

No. 13-08-00264-CV, 2009 WL 3766575, at *3 (Tex. App.–Corpus Christi Nov. 12, 2009,

no pet.) (mem. op.).

       Statutory construction is a legal question that we review de novo. Entergy Gulf

States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); City of Port Isabel v. Pinnell,

207 S.W.3d 394, 409 (Tex. App.–Corpus Christi 2006, no pet.). Our primary objective in

statutory construction is to give effect to the legislature’s intent. See State v. Shumake,

199 S.W.3d 279, 284 (Tex. 2006). In resolving an issue of statutory construction, we first

look to the plain language of the statute. See id. “Where text is clear, text is determinative

of that intent” unless enforcing the plain language would produce absurd results. Entergy

Gulf States, Inc., 282 S.W.3d at 437. We read the statute as a whole and give meaning

to the language that is consistent with other provisions in the statute. Dallas County Cmty.

Coll. Dist. v. Bolton, 185 S.W.3d 868, 872-73 (Tex. 2005); Tex. Dep’t of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). We read every word in a statute as if

it were deliberately chosen and presume that words excluded from the statute are done

so purposefully. See Cameron v. Terrell & Grant, Inc., 618 S.W.2d 535, 540 (Tex. 1981);

Pinnell, 207 S.W.3d at 409. “Only when it is necessary to give effect to the clear legislative

intent may we insert additional words or requirements into a statutory provision.” Pinnell,

207 S.W.3d at 409.

                                    III. APPLICABLE LAW
                                              8
         Under Texas Local Government Code section 43.141(a), a majority of the qualified

voters of an annexed area may petition the governing body of the municipality for

disannexation for the municipality’s failure or refusal to provide services. See TEX . LOC .

GOV’T CODE ANN . § 43.141(a).

         If the governing body fails or refuses to disannex the area within 60 days
         after the date of the receipt of the petition, any one or more of the signers of
         the petition may bring a cause of action in a district court of the county in
         which the area is principally located to request that the area be
         disannexed. . . . The district court shall enter an order disannexing the area
         if the court finds that a valid petition was filed with the municipality and that
         the municipality failed to perform its obligations in accordance with the
         service plan or failed to perform in good faith.

Id. § 43.141(b).

                                                   IV. ANALYSIS

         Rio Bravo contends that the trial court erred in granting the City’s motion for

summary judgment because the City “failed to perform in ‘good faith,’” as required by

section 43.141(b), by failing to provide “additional or new services” to Rio Bravo after

annexation. See id. We disagree.

         A district court must enter an order of disannexation if the court finds that: (1) a

valid petition was filed with the municipality; and (2) the municipality . . . failed to perform

in good faith. See id. This Court has previously determined that Rio Bravo’s petition for

disannexation was valid.4 See Rio Bravo Subdivision Prop. Owners Assoc., 2008 WL


          4
            A petition is valid if: “(1) a m ajority of qualified voters of the annexed area . . . have filed a petition
with the city alleging a failure to provide services within the applicable tim e period; and (2) sixty days . . . have
passed since the city received the petition.” City of Brownsville v. Rio Bravo Subdivision Prop. Owners
Assoc., No. 13-07-554-CV, 2008 W L 384371, at *3 (Tex. App.–Corpus Christi Feb. 14, 2008, no pet.) (m em .
op.) (citing T EX . L O C . G O V 'T C OD E A N N . § 43.141). Both parties stipulated that “On January 28, 2005, [Rio
Bravo] delivered to the City of a Petition for Disannexation for failure to provide new or additional services,
signed by the m ajority of the qualified voters in the annexed area as provided for in [Texas Local Governm ent
Code section] 43.141 . . . .” Moreover, the parties agreed that Rio Bravo “com plied with all (statutory)
procedural prerequisites to the filing of [the suit for disannexation].”
                                                           9
384371, at *3. Rio Bravo supports its contention that the City failed to perform in good faith

by citing the language of section 43.141(a), as well as various case law setting forth the

general tenets of statutory construction. See TEX . LOC . GOV’T CODE ANN . § 43.141(a).

Specifically, Rio Bravo asserts that a municipality fails to perform in good faith where it

“fails or refuses to provide services or to cause services to be provided to the [annexed]

area . . . .” Id. Thus, we must determine whether the trial court erred by determining that

the City did not fail or refuse to provide services to Rio Bravo. See id.

       The plain language of 43.141(a) allows disannexation where a municipality “fails or

refuses to provide services” to an annexed area. See id.; see also Shumake, 199 S.W.3d

at 284. Rio Bravo stipulated that the City provided certain municipal services after

annexation and that the City provided every type of municipal service that it was legally

allowed to provide. Despite these stipulations, Rio Bravo argues that the City failed to

provide services in good faith because it failed to provide “any additional or new services

to the Rio Bravo Subdivision that the subdivision did not already receive prior to the

annexation.” (Emphasis in original.)

       Nothing in the plain language of the statute indicates that a municipality must

provide new or additional services to an annexed area. See TEX . LOC . GOV’T CODE ANN .

§ 43.141(a).    Moreover, Rio Bravo does not contend, and we do not conclude, that

enforcing the plain language of section 43.141 would lead to absurd results. See Entergy

Gulf States, Inc., 282 S.W.3d at 437. Although Rio Bravo asserts that we may consider

“the (1) object sought to be attained, (2) circumstances under which the statute was

enacted, (3) legislative history, (4) common law or former statutory provisions including

laws on the same or similar subjects, (5) consequences of a particular construction, (6)

                                             10
administrative construction of the statute, and (7) title (caption), preamble, and emergency

provision,” to determine the legislative intent, Rio Bravo provides no argument advancing

any of these factors. Because we read every word in a statute as if it were deliberately

chosen and presume that words excluded from the statute are done so purposefully, see

Cameron v. Terrell & Grant, Inc., 618 S.W.2d 535, 540 (Tex. 1981); Pinnell, 207 S.W.3d

at 409, we do not interpret “fails or refuses to provide services” to mean “fails or refuses

to provide additional or new services.” See Pinnell, 207 S.W.3d at 409 (providing that we

do not “insert additional words or requirements into a statutory provision” unless the

insertion is necessary “to give effect to the clear legislative intent”). Thus, Rio Bravo’s

argument that section 43.141 allows for disannexation because the City failed to provide

new or additional services is meritless.      Accordingly, the trial court did not err in

determining that the City was entitled to summary judgment as a matter of law. See TEX .

R. CIV. P. 166a(c); Fielding, 289 S.W.3d at 848. We overrule Rio Bravo’s sole issue on

appeal.

                                      V. CONCLUSION

       We affirm the judgment of the trial court.


                                                    ROGELIO VALDEZ
                                                    Chief Justice


Delivered and filed the
7th day of October, 2010.




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