                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00248-CV

KAREN HALL,
                                                             Appellant
v.

CITY OF BRYAN, TEXAS,
                                                             Appellee


                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 12-000391-CV-272


                           MEMORANDUM OPINION


       On July 17, 1999, the City of Bryan adopted an ordinance annexing part of Karen

Hall's property. In 2004, she filed suit seeking disannexation. The trial court granted

the City's motion for summary judgment and Hall appealed. We affirmed the trial

court's judgment in 2006. 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 if it had any jurisdiction, the trial court granted the City's motion for
summary judgment. We affirmed the trial court’s judgment as to the City’s plea to the

jurisdiction. See Hall v. City of Bryan, No. 10-10-00403-CV, 2011 Tex. App. LEXIS 8038

(Tex. App.—Waco Oct. 5, 2011, pet. denied) (mem. op.). In 2012, Hall sued the City a

third time for disannexation. The City again filed a plea to the jurisdiction and a motion

for summary judgment. The trial court granted the plea to the jurisdiction but did not

rule on the motion for summary judgment. It also did not state the grounds on which it

granted the City’s plea to the jurisdiction. Because the trial court erred in granting the

City’s plea to the jurisdiction as to one of Hall’s claims, the trial court’s judgment

granting the City’s plea to the jurisdiction and dismissing Hall’s suit is affirmed in part

and reversed and remanded in part.

PLEA TO THE JURISDICTION

        Hall complains in her second issue1 that the trial court erred in granting the

City’s plea to the jurisdiction on any ground alleged by the City.

        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. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex.

Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the

pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Id. If,

however, a plea to the jurisdiction challenges the existence of jurisdictional facts, we

1 Because of our disposition of this issue, we need not discuss Hall’s first issue regarding the trial court’s
failure to file findings of fact and conclusions of law.

Hall v. City of Bryan, Texas                                                                           Page 2
consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised. Miranda, 133 S.W.3d at 227. If the evidence creates a fact

question regarding the jurisdictional issue, then the trial court cannot grant the plea to

the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-228. If

the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional

issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id.

        To pursue an action for disannexation in the district court, a person must have

signed the petition for disannexation and must show 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.” TEX. LOC. GOV’T

CODE ANN. § 43.141(b) (West 2008). Hall alleged in her first amended petition for

disannexation in the trial court that a petition for disannexation was filed with the City

Secretary on September 1, 2009 and that the City denied the petition on October 27,

2009. Hall also alleged that she is a qualified voter in Brazos County with an address

within the annexed area and was able to be one of the signers of the petition submitted

to the City Secretary.

Standing

        But, the City generally contended in its initial plea to the jurisdiction that Hall

lacked standing to bring her claims.




Hall v. City of Bryan, Texas                                                           Page 3
        Standing, as a component of subject matter jurisdiction, cannot be waived and

may even be raised for the first time on appeal by the parties or by the court. Texas

Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445-446 (Tex. 1993). In Texas,

the standing doctrine requires a concrete injury to the plaintiff and a real controversy

between the parties that will be resolved by the court. Heckman v. Williamson County,

369 S.W.3d 137, 154 (Tex. 2012); see Texas Ass'n of Business, 852 S.W.2d at 446. A

standing inquiry "requires careful judicial examination of a complaint's allegations to

ascertain whether the particular plaintiff is entitled to an adjudication of the particular

claims asserted." Heckman, 369 S.W.3d at 156 (quoting Allen v. Wright, 468 U.S. 737, 752,

104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984)).

        The City argues that Hall complains the City failed to provide free municipal

services which the service plan did not include. Consequently, its argument continues,

a complaint that a service plan omits provisions required by Section 43.056 of the Local

Government Code or contains terms in conflict with this section is a procedural

complaint that only the State can raise in a quo warranto proceeding.2 See TEX. LOC.

GOV’T CODE ANN. § 43.056 (West Supp. 2013). Hall contends, however, that she has

standing because her petition does not challenge the initial annexation and is limited to

a request for disannexation due to the City’s failure to provide full municipal services in



2 As we have previously explained, the only proper method for attacking the annexation process is
through a quo warranto proceeding. Hall v. City of Bryan, No. 10-10-00403-CV, 2011 Tex. App. LEXIS 8038,
*6 (Tex. App.—Waco Oct. 5, 2011, pet. denied) (memo. op.).

Hall v. City of Bryan, Texas                                                                     Page 4
good faith or under its service plan. Thus, her argument continues, the City’s challenge

to her standing to sue fails.

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

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

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

(West 2008 & Supp. 2013). 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 Supp. 2013). Complaints about the annexation

process, such as the adequacy of a service plan, 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 city 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 Hall v. City of Bryan, No. 10-10-

00403-CV, 2011 Tex. App. LEXIS 8038, *5 (Tex. App.—Waco Oct. 5, 2011, pet. denied)

(mem. op.); 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.). However, complaints about

the failure to provide services under the service plan or the implementation of the


Hall v. City of Bryan, Texas                                                           Page 5
services plan are complaints about which a property owner does have standing to sue

for disannexation. See Hall, 2011 Tex. App. LEXIS 8038 at *6, 7. Thus, to determine if

the trial court has jurisdiction of a disannexation suit, the nature of the landowner's

complaints must be closely examined to determine if the complaint is about the

annexation process or the implementation of the annexation plan. Id. *6. Hall’s last

attempt to appeal the trial court’s order granting the City’s plea to the jurisdiction was

unsuccessful because her claims related to misrepresentations made by the City prior to

the annexation which this Court held to be an attack on the validity of the annexation

process itself. Id. *8-9.

        This time, Hall’s complaints are a little different. As explained below, Hall still

complains to some extent about the adequacy of the service plan adopted as compared

to the service plan required by the Local Government Code. This is a complaint about

the annexation process and is a complaint that she does not have standing to pursue.

        Specifically, Hall argues that she may bring a suit for disannexation because the

City failed to provide full municipal services “in good faith,” independent of the service

plan. Hall derives her argument from the fact that the service plan has long expired

and from a portion of section 43.141 which provides:

        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.



Hall v. City of Bryan, Texas                                                         Page 6
        TEX. LOC. GOV’T CODE ANN. § 43.141(b) (West 2008) (emphasis added).3

        Hall agrees that we need to look to the statute as a whole, and not just isolated

portions, when deciding what is meant by “or failed to perform in good faith.” Tex.

DOT v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). However, she focuses on

the word “or” that precedes “in good faith” and what words are arguably missing. In

determining the Legislative purpose of a statute, we begin by looking to the plain

meaning of the statute's words. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840-

841 (Tex. 2007).       If the statutory language is unambiguous, we must interpret it

according to its terms, giving meaning to the language consistent with other provisions

in the statute. Tex. DOT, 146 S.W.3d at 642.

        When we look at the annexation and disannexation statute as a whole, we note

that there is no separate duty by a city to provide full municipal services “in good faith”

beyond those specified in the service plan. Section 43.056 concerns only the service

plan: what it must have, what it may not have, how to amend it, and how to enforce it.

TEX. LOC. GOV'T CODE ANN. § 43.056 (West Supp. 2013). It is the service plan that

provides for the extension of municipal services, not the process of annexation by itself.

Id. (a). And a service plan must be a part of the annexation process. See id. Once the

public hearings conclude, the service plan is attached to the ordinance of annexation



3 Hall argues that due to the expiration of the service plan, it is no longer a jurisdictional bar to her
bringing suit. The service plan was never a jurisdictional bar per se. Attacking the validity of the service
plan is a jurisdictional bar.

Hall v. City of Bryan, Texas                                                                         Page 7
and is approved as part of the ordinance. Id. (j). If a city then fails or refuses to provide

services as provided for under the plan, then a majority of the qualified voters of the

annexed area may petition the city for disannexation. Id. § 43.141 (a) (West 2008). The

only services provided by the statute as a whole are those services which are set out in a

service plan. Thus, when the disannexation statute provides that, “[th]e district court

shall enter an order disannexing the area if the court finds … 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), the phrase “failed to perform in good faith” cannot mean,

as Hall argues, the failure to provide “in good faith” full municipal services outside of,

or independent of, the service plan. It can only mean the failure to perform under the

service plan in good faith.        See Rio Bravo Subdivision Prop. Owners Ass'n v. City of

Brownsville, No. 13-09-00246-CV, 2010 Tex. App. LEXIS 8130 (Tex. App.—Corpus Christi

Oct. 7, 2010, no pet.) (mem. op.) (nothing in the plain language of section 43.141(a)

indicates that a municipality must provide new or additional services to an annexed

area).

         Accordingly, Hall’s complaints about services not included in the service plan

are complaints which she has no standing to pursue.4



4 We are not unsympathetic to Hall’s plight. The service plan included in the annexation ordinance does
not contain the provisions the statute specifies that it must contain. Notwithstanding the failure to
include the required statutory provisions in the service plan, Hall cannot compel the City to comply with
the annexation process because only the Attorney General can do that in a quo warranto proceeding.
Thus, absent the possibility of filing a mandamus proceeding against the Attorney General to compel the
Attorney General to bring a quo warranto proceeding to require compliance by a city with the annexation

Hall v. City of Bryan, Texas                                                                      Page 8
        Hall also contends that, after 13 years, the annexed area still does not have sewer

paid by tax dollars, fire hydrants, water on both sides of Highway 21, waterlines

capable of supporting fire hydrants, and adequate police patrols. The service plan at

issue did not include a provision for fire hydrants, water on both sides of the highway,

or waterlines capable of supporting fire hydrants.                  It provided for general fire

protection and for water and sewer, but any extension of the water or sewer mains were

to be at the expense of the landowner of the annexed area. Thus, Hall’s particular

complaints are not about the City’s failure to provide services described in the service

plan but are about services she contends were required by the statute but which were

not included in the service plan and, thus, are attacks on the adequacy of the service

plan. Hall does not have standing to pursue these particular complaints.

        Accordingly, the trial court did not err in granting the City’s plea to the

jurisdiction as to Hall’s standing to pursue her claim that the City failed to provide full

municipal services “in good faith,” independent of the service plan and that the

annexed area does not have sewer paid by tax dollars, fire hydrants, water on both

sides of Highway 21, and waterlines capable of supporting fire hydrants. The trial

court’s judgment is affirmed, in part, on these claims.

        However, the service plan specifically provided:


statute, a person who has property annexed by a city has no readily identifiable remedy to compel the
city to comply with the annexation statute by including the minimum statutory requirements for a service
plan; one that, in essence, includes the language required by the statute. See TEX. LOC. GOV’T CODE ANN.
§ 43.056 (West Supp. 2013).

Hall v. City of Bryan, Texas                                                                     Page 9
        Immediately upon annexation, the City of Bryan Police Department will
        provide regular and routine preventive patrols as part of its overall patrol
        activities….

Hall alleged in her petition that police patrols were not adequate “as evidenced by 130

continuous hours of video recording showing only one Bryan police car in the Area

during that time.” This is a claim about the implementation of the service plan and Hall

has standing to pursue that claim.

        Because Hall raised at least one claim which she had standing to pursue, the trial

court erred in granting the City’s plea to the jurisdiction on the basis of standing as to

Hall’s claim regarding adequate police patrols. Accordingly, the trial court’s judgment

is reversed in part as to that particular claim. 5

Additional Grounds Raised by the City

        We now address the additional grounds of res judicata and collateral estoppel,

statute of limitations, and sovereign immunity raised by the City in its first

supplemental plea to the jurisdiction.6


5 In this appeal addressing the plea to the jurisdiction, we do not address any merit-based defenses the
City may have to any claim. Furthermore, while we have addressed the other claims made by Hall in her
petition and explained why she does not have standing to pursue them and therefore the trial court does
not have jurisdiction to hear those claims, our holding does not necessarily mean there are no other
claims that Hall can pursue in this proceeding by amending her petition. But for Hall to have standing to
pursue any allegation of deficient performance by the City, such allegation must be carefully examined to
determine that it is rooted in a failure to perform the service plan adopted as part of the annexation
ordinance and not otherwise.

6 In connection with this proceeding, the City has filed a motion to supplement the record with copies of
the record from Hall’s first two disannexation proceedings. If the records were appropriate for us to
consider in determining our jurisdiction, we could consider them in this proceeding. Because the records
are potentially relevant only to a factual determination for merit based defenses as opposed to an
evaluation of our jurisdiction, we deny the City’s motion.

Hall v. City of Bryan, Texas                                                                     Page 10
Pleas in Bar

        We note, initially, that claims such as res judicata, collateral estoppel, and statute

of limitations are pleas in bar, not jurisdictional pleas. See TEX. R. CIV. P. 94; Tex. Hwy.

Dep't v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967). In oral argument to this Court, the City

suggested that at least statute of limitations can be a jurisdictional plea as well, and is a

jurisdictional plea in this case. In support of this argument, the City relies on the cases

of City of Murphy v. City of Parker, 932 S.W.2d 479, 482 (Tex. 1996), City of Celina v. City of

Pilot Point, No. 2-08-230-CV, 2009 Tex. App. LEXIS 6932 (Tex. App.—Fort Worth Aug.

31, 2009, pet. ref’d) (mem. op.), and DeMagaloni v. Bexar County Hosp. Dist., No. 04-12-

00691-CV, 2013 Tex. App. LEXIS 11520 (Tex. App.—San Antonio Sept. 11, 2013, no pet.)

(mem. op.). These cases do not support the City’s argument. First, the City of Murphy

and City of Celina cases were appeals from the granting of motions for summary

judgment; merit-based motions.        Second, the DeMagaloni case involved a statutory

period within which to file an employment discrimination claim which was a

mandatory prerequisite to suit against a governmental entity. See DeMagaloni, 2013 Tex.

App. LEXIS 11520, *4-5. There is no similar statutory prerequisite for filing a suit for

disannexation.      An ordinary statute of limitations defense is a plea in bar, not a

jurisdictional plea.

        If a plea in bar is sustained, a take-nothing judgment finally disposing of the

controversy will be rendered on the merits for the defendant. See Jarrell, 418 S.W.2d at


Hall v. City of Bryan, Texas                                                            Page 11
488; Kelley v. Bluff Creek Oil Co., 309 S.W.2d 208, 214 (Tex. 1958). In contrast, a plea to the

jurisdiction is a challenge to the court's power to hear the suit, which, if sustained,

requires dismissal of the case. See Jarrell, 418 S.W.2d at 488; see also National Life Co. v.

Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (Tex. Comm'n App. 1943) (defining jurisdiction

as "the power conferred upon a court by the Constitution and laws to determine the

merits of that suit as between the parties and to carry its judgment into effect").

        The trial court dismissed Hall’s claims “in their entirety.” Thus, it is evident that

the trial court did not grant the City’s plea to the jurisdiction based on the pleas in bar,

nor would it be proper to do so if the suit was properly dismissed for lack of

jurisdiction.

Sovereign Immunity

        We next address the City’s assertion of sovereign immunity. See Rusk State Hosp.

v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (“if a governmental entity validly asserts that it is

immune from a pending claim, any court decision regarding that claim is advisory to

the extent it addresses issues other than immunity….”). In its supplemental plea to the

jurisdiction, the City raised sovereign immunity as a subset to its argument on standing.

The gist of the City’s argument is that because Hall attacks the validity of the

annexation, Hall lacks standing and thus, the City has sovereign immunity from Hall’s

suit. On appeal, the City also argues that Hall has not established a waiver of immunity

because Hall failed to establish legislative consent expressly granting consent for a


Hall v. City of Bryan, Texas                                                            Page 12
citizen disannexation suit upon the expiration of the service plan. We need not discuss

these arguments.

        A dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is

with prejudice. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007) (citing

Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004)). In this case, the trial court

dismissed Hall’s claims “in their entirety,” but not with prejudice. Thus, it appears the

trial court did not grant the City’s plea to the jurisdiction based on its claim of sovereign

immunity.7

Conclusion-Plea to the Jurisdiction

        Because Hall has standing to pursue at least one claim raised in her petition, that

being the City failed to provide adequate police patrols, Hall’s second issue is sustained

in part.

CONCLUSION

        Having sustained Hall’s second issue on appeal in part, we affirm the trial

court’s judgment granting the City’s plea to the jurisdiction and dismissing Hall’s suit

as to Hall’s standing to seek disannexation based on her claim that the City failed to

provide full municipal services “in good faith,” independent of the service plan and



7 Moreover, we have already determined that Hall cannot sue the City based on a non-compliant service
plan because she does not have standing. The Attorney General, however, does have standing, and thus
the City lacks sovereign immunity to such a suit. Furthermore, the statute expressly provides for a suit
by a property owner for disannexation for failure to comply with the service plan and is thus a statutory
waiver of the common law doctrine of sovereign immunity. See TEX. LOCAL GOV’T CODE ANN. § 43.141
(West 2008).

Hall v. City of Bryan, Texas                                                                     Page 13
that the annexed area does not have sewer paid by tax dollars, fire hydrants, water on

both sides of Highway 21, and waterlines capable of supporting fire hydrants, reverse

the trial court’s judgment granting the City’s plea to the jurisdiction and dismissing

Hall’s suit as to Hall’s standing to seek disannexation based on her claim that the City

lacked adequate police patrols, and remand the case to the trial court for further

proceedings.




                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed in part; reversed and remanded in part
Opinion delivered and filed July 24, 2014
[CV06]




Hall v. City of Bryan, Texas                                                     Page 14
