      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-09-00523-CV



     Round Rock Life Connection Church, Inc.; Teddy J. Straub; Orlena Mehrabian;
         Hossain Mehrabian; Luciano Rivera; Tim Hubble; Judy Hubble; and
                          Mary Jo Greenough, Appellants

                                               v.

                          The City of Round Rock, Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 09-604-C368, HONORABLE BURT CARNES, JUDGE PRESIDING




                            MEMORANDUM OPINION


              Round Rock Life Connection Church, Inc., Teddy J. Straub, Orlena Mehrabian,

Hossain Mehrabian, Luciano Rivera, Tim Hubble, Judy Hubble, and Mary Jo Greenough

(collectively, “the Landowners”) sought both a temporary injunction enjoining the City of Round

Rock (“Round Rock”) from annexing their properties and a judgment declaring void ordinances

adopted by Round Rock that annexed their properties and that required property owners, including

the Landowners, to pay the costs of connecting to Round Rock’s water and sewer utility lines. In

the alternative, the Landowners sought a writ of mandamus requiring Round Rock to provide

municipal services to the Landowners on the effective date of their properties’ annexation. Round
Rock filed a “plea in abatement” asserting the Landowners lacked standing to bring suit.1 The trial

court sustained Round Rock’s plea and dismissed the matter.

                Because Round Rock’s plea addressed only the Landowners’ standing to challenge

the annexation of their properties and did not speak to the other claims raised by the Landowners,

we will affirm that part of the trial court’s judgment dismissing for lack of standing the Landowners’

challenge to the annexation ordinance and, without reaching the merits, reverse that part of the

judgment dismissing the other claims and remand for further proceedings consistent with

this opinion.


                                           DISCUSSION

Standing and the Landowners’ Annexation Challenge

                A challenge to a trial court’s subject-matter jurisdiction is reviewed de novo. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). In reviewing a private

party’s standing to challenge an annexation, a reviewing court must decide whether the challenge

attacks the municipality’s power or authority to annex the area in question or only complains of some

violation of statutory procedure by the municipality. See City of Port Isabel v. Pinnell, 161 S.W.3d

233, 238 (Tex. App.—Corpus Christi 2005, no pet.); Werthmann v. City of Fort Worth, 121 S.W.3d




       1
           Although styled a plea in abatement, because it challenged the Landowners’ standing,
Round Rock’s plea was actually a plea to the jurisdiction. “A plea in abatement is used to allege
facts arising outside of the petition that set forth reasons, other than venue or jurisdiction, why the
case should not proceed or should be dismissed.” William V. Dorsaneo III, Texas Litigation Guide
§ 70.03[7][a] (2010). A plea to the jurisdiction seeks dismissal of the case on the ground that the
court lacks subject-matter jurisdiction. Id. § 70.03[6]. Standing is a component of subject-matter
jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993).

                                                  2
803, 806 (Tex. App.—Fort Worth 2003, no pet.); City of San Antonio v. Hardee, 70 S.W.3d 207, 210

(Tex. App.—San Antonio 2001, no pet.).


Background

                A municipality generally must annex land pursuant to an annexation plan and give
three years’ notice of its intent to annex. See Tex. Loc. Gov’t Code Ann. § 43.052 (West 2008); City
of Rockwall v. Hughes, 246 S.W.3d 621, 623 (Tex. 2008). If an area is exempt from the three-year
notice requirement, a municipality may annex that area by use of abbreviated procedures with less
notice of the city’s intent to annex. See Tex. Loc. Gov’t Code Ann. §§43.061- .065 (West 2008);
Hughes, 246 S.W.3d at 623.
                In pertinent parts, section 43.052 (entitled “Municipal Annexation Plan Required”)
of subchapter C (entitled “Annexation Procedure for Areas Annexed Under Municipal Annexation
Plan”) reads as follows:


               (b)     A municipality may annex an area identified in the
                       annexation plan only as provided by this section.

               (c)     A municipality shall prepare an annexation plan that
                       specifically identifies annexations that may occur
                       beginning on the third anniversary of the date the
                       annexation plan is adopted. The municipality may
                       amend the plan to specifically identify annexations
                       that may occur beginning on the third anniversary of
                       the date the plan is amended.

                                      *       *       *

               (h)     This section does not apply to an area proposed for
                       annexation if:

                       (1)    the area contains fewer than 100
                              separate tracts of land on which one or
                              more residential dwellings are located
                              on each tract . . .

                                      *       *       *

               (i)     A municipality may not circumvent the requirements
                       of this section by proposing to separately annex two

                                                  3
                       or more areas described by Subsection (h)(1) if no
                       reason exists under generally accepted municipal
                       planning principles and practices for separately
                       annexing the areas. If a municipality proposes to
                       separately annex areas in violation of this section, a
                       person residing or owning land in the area may
                       petition the municipality to include the area in the
                       municipality’s annexation plan. . . .


Tex. Loc. Gov’t Code Ann. § 43.052 (emphases added).

               Round Rock notified the Landowners in February 2009 that it intended to annex their

properties located along East Old Settlers Road. In response, pursuant to section 43.052(i), the

Landowners petitioned Round Rock to include their properties in the city’s annexation plan.2 See

id. § 43.052(i). Round Rock denied their request, and the city council in May 2009 voted to annex

each of the Landowners’ properties.

               The Landowners filed suit, seeking both a temporary injunction enjoining Round

Rock from annexing their properties and from requiring the Landowners to pay the costs of hooking

up to Round Rock’s water and sewer utility lines, as well as a judgment declaring void the

ordinances adopted by Round Rock that annexed their properties and that required property owners,

including the Landowners, to pay the costs of connecting to the water and sewer utility lines. In the

alternative, pursuant to section 43.056(l) of the local government code, the Landowners sought a writ

of mandamus requiring Round Rock to provide municipal services to the Landowners on the


       2
           Areas exempt from a municipality’s three-year annexation plan may be annexed after only
30 days’ notice of the first hearing on the proposed annexation, rather than after three-years’ notice
of intent to annex. See Tex. Loc. Gov’t Code Ann. § 43.062(b) (West 2008). Thus, if Round Rock
had granted the Landowners’ petition to include their properties in the city’s annexation plan, that
would have had the effect of delaying any actual annexation of those properties by a minimum of
three years.

                                                  4
effective date of their properties’ annexation. See id. § 43.056(l). In response, Round Rock filed

a “plea in abatement” asserting the Landowners lacked standing to bring suit.

                 The trial court’s order is titled “Order of Dismissal on Plea in Abatement” and recites

that the court heard the plea in abatement of Defendant, City of Round Rock, included in

paragraph II of Defendant’s original answer. In pertinent part, Round Rock’s plea averred

the following:


                 [The Landowners’] Petition alleges that the ordinances annexing their
                 properties are invalid because [Round Rock] failed to comply with
                 various procedural requirements of Chapter 43, Texas Local
                 Government Code. It is well settled law in the State of Texas that
                 procedural irregularities in municipal annexation ordinances can be
                 challenged only in a quo warranto proceeding brought by the State of
                 Texas through the County Attorney, District Attorney or the Attorney
                 General. Therefore, this action should be dismissed because of [the
                 Landowners’] lack of standing and/or capacity to bring this action.


After hearing the parties’ legal arguments, the trial court granted Round Rock’s plea and dismissed

the suit.

                 Unless an annexation is wholly void, that is, exceeding a municipality’s power or

authority to annex, or the Legislature has expressly granted a private right to challenge the

annexation in some manner, a quo warranto proceeding brought by the State is the only proper means

of attacking a municipality’s annexation in court. Hughes, 246 S.W.3d at 627. Private challenges

to annexation ordinances have been sustained as exceeding a municipality’s authority and thus held

void when: (1) the annexation goes beyond the statutory size limitations;3 (2) the municipality


        3
        See Tex. Loc. Gov’t Code Ann. § 43.055 (“Maximum Amount of Annexation Each Year”)
(West 2008).

                                                   5
attempts to annex areas within the corporate limits of another municipality; (3) the municipality

seeks to annex areas not contiguous with the municipality’s own limits;4 and (4) the municipality

attempts to annex an area with a boundary description that does not close. Alexander Oil Co. v. City

of Seguin, 825 S.W.2d 434, 438 (Tex. 1991); see City of West Orange v. State ex rel. City of Orange,

613 S.W.2d 236, 238 (Tex. 1981) (attempted annexation of territory not contiguous with

municipality’s own limits); City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex. 1975)

(attempted annexation of territory within corporate limits of another municipality); Deacon v. City

of Euless, 405 S.W.2d 59, 64 (Tex. 1966) (attempted annexation of territory exceeding statutory size

limitations); State ex rel. Rose v. City of LaPorte, 386 S.W.2d 782, 789 (Tex. 1965) (attempted

annexation in which boundary of annexed territory did not close using description contained in

ordinance). The common trait of these cases is that the municipality did not possess statutory

authority to undertake annexation. Alexander Oil, 825 S.W.2d at 438. It was not simply a matter

of the municipality’s failing to comply with procedural requirements. Rather, the municipality

lacked authority to pursue annexation at all.

               The Landowners assert the annexation of their properties is void because Round Rock

did not have the authority to circumvent the requirements of local government code section 43.052.

See Tex. Loc. Gov’t Code Ann. § 43.052. In particular, they argue section 43.052(i), which reads

in pertinent part as follows, is an express limitation on Round Rock’s authority to annex.


               (i)     A municipality may not circumvent the requirements
                       of this section by proposing to separately annex two


       4
         A municipality may annex area only in its extraterritorial jurisdiction unless it owns the
area. Id. § 43.051 (“Authority to Annex Limited to Extraterritorial Jurisdiction”) (West 2008).

                                                 6
                       or more areas described by Subsection (h)(1) if no
                       reason exists under generally accepted municipal
                       planning principles and practices for separately
                       annexing the areas. . . .


Id. § 43.052(i). In pertinent part, section 43.052(h)(1) reads as follows:


               (h)     This section does not apply to an area proposed for
                       annexation if:

                       (1)     the area contains fewer than 100
                               separate tracts of land on which one or
                               more residential dwellings are located
                               on each tract; . . . .


Id. § 43.052(h)(1). The Landowners contend that, because their tracts of land failed to satisfy the

requirements of section 43.052(h)(1), Round Rock had no authority to annex their properties. See

id.

               Round Rock asserts its annexation ordinances are valid, not void. It further argues

that the Landowners, being private individuals, lacked standing to attack the validity of Round

Rock’s annexation of their properties and that a quo warranto proceeding brought by the State is the

only proper means of attacking a municipality’s annexation. See Alexander Oil, 825 S.W.2d at 436.

               Contrary to the Landowners’ contention, section 43.052(i) is not an express limitation

on a municipality’s annexation authority. Rather, it is part of subchapter 43C, which sets out

annexation procedures for areas included in the three-year annexation plans. See Tex. Loc. Gov’t

Code Ann. §§ 43.051-.057 (West 2008). By its terms, section 43.052(i) simply forbids a

municipality from circumventing the requirements of that section, that is, the requirement to prepare

a municipal annexation plan, if no reason exists for separately annexing the areas. Id. § 43.052(i).

                                                 7
Because the Legislature has clearly indicated that the provisions of section 43.052 are procedural,

the Landowners’ complaint that Round Rock failed to comply with the requirements of that section

addresses procedure. See Werthmann, 121 S.W.3d at 807 (quoting City of Balch Springs v. Lucas,

101 S.W.3d 116, 122 (Tex. App.—Dallas 2002, no pet.); City of San Antonio v. Hardee, 70 S.W.3d

207, 212 (Tex. App.—San Antonio 2001, no pet.) (provisions of section 43.052 are procedural rather

than limitations on municipality’s inherent annexation authority); see also Hughes, 246 S.W.3d at

627, 631 (section 43.052(i) does not create substantive private right for landowner to compel

arbitration). As such, even if the Landowners proved Round Rock’s alleged noncompliance with

section 43.052, the annexation of their properties would be voidable, not void. Id. The annexation

of their properties not having been wholly void, the Landowners lacked standing to challenge Round

Rock’s annexation. See Hughes, 246 S.W.3d at 627; Alexander Oil, 825 S.W.2d at 436.

               We affirm the trial court’s judgment dismissing the Landowners’ challenge of Round

Rock’s annexation ordinance for lack of standing.


Landowners’ Other Claims

               Round Rock’s “plea in abatement” spoke only to the Landowners’ standing to

challenge the annexation of their properties. However, the Landowners also requested a temporary

injunction and judgment declaring that Round Rock is prohibited from requiring them to incur the

expense of connecting to Round Rock’s sewer and water lines in a manner inconsistent with

chapter 395 of the local government code. See Tex. Loc. Gov’t Code Ann. § 43.056(f)(2) (West

2008). Moreover, in the alternative, the Landowners sought a writ of mandamus requiring Round

Rock to provide municipal services on the effective date of their properties’ annexation. Id.


                                                8
§ 43.056(l). Because Round Rock’s plea spoke only to the Landowners’ challenge to Round Rock’s

annexation ordinance and not to these additional claims, the trial court erred in dismissing, without

addressing, these other claims in its judgment.


                                         CONCLUSION

               We affirm that part of the trial court’s judgment dismissing the Landowners’

challenge to Round Rock’s ordinance annexing their properties. Without expressing any opinion

regarding the Landowners’ standing to pursue their additional claims or the respective merits of the

Landowners’ assertions, we reverse that part of the court’s judgment dismissing the Landowners’

other claims and remand to the court for further proceedings consistent with this opinion.




                                                      ____________________________________

                                                      David Puryear, Justice

Before Justices Puryear, Henson, and Goodwin

Affirmed in part; Reversed and Remanded in part

Filed: February 18, 2011




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