






City of Burleson v. Floyd Bartula et al.
















IN THE
TENTH COURT OF APPEALS
 

No. 10-02-334-CV

     CITY OF BURLESON,
                                                                              Appellant
     v.

     FLOYD BARTULA, ET AL.,
                                                                              Appellees
 

From the 249th District Court
Johnson County, Texas
Trial Court # C200200530
                                                                                                                

O P I N I O N
                                                                                                                

      Forty-six individuals and one business (the Appellees) filed a petition in district court in
Johnson County for a declaratory judgment and application for temporary injunction in opposition
to the City of Burleson’s notice that it would annex property owned by the Appellees as well as
others who were not named as plaintiffs.  Appellees filed suit on November 6, 2002, about a week
before a public meeting on November 14, at which, according to a notice previously given,
Burleson would vote on the annexation.  After a hearing, the trial court granted a temporary
injunction based on its findings that (1) Burleson’s “population” was under 25,000, (2) thus its
extraterritorial jurisdiction (the area in which it was authorized to annex property) was one mile,
(3) there was a probability of irreparable harm from Burleson’s annexing property outside the one-mile limit, (4) there was no adequate remedy at law, and (5) all other complaints raised by the
Appellees were about procedural violations in the annexation process, which can only be raised
in a quo warranto proceeding.  The court entered an order enjoining Burleson from annexing any
property outside its one-mile extraterritorial jurisdiction (ETJ).  Burleson appeals from the
interlocutory order granting a temporary injunction.  Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(4) (Vernon Supp. 2003).
      We will reverse the temporary injunction order and render an order denying the application
for a temporary injunction.
What We Will Address
      Appellees contended in their petition that the annexation was illegal because it included
property outside Burleson’s ETJ and it violated numerous statutory annexation procedures. 
Burleson, citing Alexander Oil Co. v. City of Seguin, argued at the injunction hearing that the
complaints about procedure can be raised only through a quo warranto proceeding.  Alexander Oil
Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex. 1991); Tex. Civ. Prac. & Rem. Code Ann.
ch. 66 (Vernon 1997).  Appellees responded that the rule in Alexander Oil applies only after an
annexation has occurred.  The trial court, agreeing with Burleson, granted the injunction solely
on the basis of the complaint that some property in the proposed annexation area is outside of
Burleson’s ETJ.  Neither party appeals from the trial court’s decision not to consider the
procedural violations, because complaints of procedural violations may be raised only by quo
warranto.  Therefore, we do not address any procedural violation that Appellees may contend
Burleson committed in the annexation process.
The Issues on Appeal
      Burleson is a home-rule municipality.  As such it has the statutory authority to annex property
to increase its geographical boundaries.  Tex. Loc. Gov’t Code Ann. § 43.021(2) (Vernon
1999).  But it may annex property only within its extraterritorial jurisdiction.  Id. § 43.051.  The
ETJ of a municipality with 5,000 “inhabitants” or more but under 25,000 is one mile, and that of
a municipality with 25,000 “inhabitants” or more but under 50,000 is two miles.  Id. § 42.021.
      Burleson complains on appeal that:
      1.   The trial court used the wrong measure of “inhabitants” to determine the ETJ. 
 
      2.   In the alternative, if the ETJ is one mile, Burleson intends to annex only those of the
sixteen parcels that are within its ETJ, and the moment that annexation is completed, the
remaining tracts would instantly become within a newly created one-mile ETJ, and they
could then be annexed.  Therefore an injunction is premature, because there is only an
assumption that the city council will annex all the tracts at once, rather than in a sequence
of annexations.
 
      3.   Injunctive relief was improper because Appellees did not prove (1) they had an interest
in the property sought to be annexed, and (2) they would suffer irreparable harm from
the annexation.
 
      4.   The injunction order is void because it is conclusory and does not contain fact findings
about irreparable harm and no adequate remedy at law. 

We will address only the first issue, which we find dispositive.
Standard of Review
      The purpose of a temporary injunction is to preserve the status quo of the litigation's subject
matter pending a trial on the merits.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002); Walling v. Metcalfe, 863 S.W.2d 57 (Tex. 1993).  To obtain a temporary injunction, the
applicant must plead and prove three specific elements: (1) a cause of action against the defendant;
(2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in
the interim.  Id.; Tex. Civ. Prac. & Rem. Code Ann. § 65.011 (Vernon 1997).
      Whether to grant or deny a temporary injunction is within the trial court's sound discretion. 
Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 58.  A reviewing court should reverse an
order granting injunctive relief only if the trial court abused that discretion.  Id.  The reviewing
court must not substitute its judgment for the trial court's judgment unless the trial court's action
was so arbitrary that it exceeded the bounds of reasonable discretion.  Butnaru, 84 S.W.3d at 204;
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985).  A trial court has no
discretion to determine what the law is.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Did the Trial Court Incorrectly Determine the Number of Inhabitants?
      Burleson complains that Appellees did not establish by evidence a probable right to the relief
sought, because the trial court applied the wrong rule of law to determine Burleson’s ETJ.  There
were no witnesses at the hearing.  The parties stipulated to the admissibility of documents and
maps and to what witnesses for Burleson would testify about the basis for the population figure
it proposed.
      The parties do not dispute that, if the number of inhabitants of Burleson exceeds 25,000, then
all the property sought to be annexed is within two miles of Burleson’s city limits and therefore
within its ETJ.  But if the number of inhabitants is under 25,000, then part of the property sought
to be annexed lies outside the one-mile ETJ.
      Appellees urged the trial court to rely on census figures.  They presented four at the hearing:
(1) from the 2000 census of the United States Census Bureau, which found the population to be
20,976; (2) from the 1990 census of the United States Census Bureau, which found the population
to be 16,113; (3) from the 2000 census of the North Central Texas Council of Governments,
which found the population to be 21,263, and (4) from the 2002 census of the North Central Texas
Council of Governments, which found the population to be 22,700.
      Burleson argues that the trial court was bound to accept the city’s determination of the number
of its inhabitants.  On February 24, 2000, Burleson passed a resolution stating that its
“population” was 25,575.
  The resolution states that the figure is based on:
[P]opulation estimates, forecasts, counts and analysis from the Department of Rural Sociology
at Texas A&M, the North Central Texas Council of Governments, the U.S. Bureau of
Census, County Records from Johnson County and Tarrant County, Water Utility Connection
Information from all certified water or waste water service providers serving areas within the
corporate limits of the City, electric utility service connection information for customers
within the [city], domestic natural gas service connections for customers within the [city],
information on school population for [the city], new building permit issuance records for the
periods [from 1995 to 2000], Certificate of Occupancy issuance records [from 1995 to 2000],
together with all other available records including mapping and aerial. . . .

      Burleson relies on State v. City of La Porte, 386 S.W.2d 782, 785-86 (Tex. 1965).  There, 
the issue was whether La Porte was a home-rule municipality with the power of annexation.  Id.
at 783.  The central question was whether its population was over 5,000, which the Texas
Constitution requires for home-rule status.  Id.  The trial court submitted a special issue to the jury
about the population over the city’s objection and its assertion that its own finding about its
population—having been made in good faith, and there being no proof of fraud—should have been
accepted by the court.  Id. at 784.  The Supreme Court held that La Porte had the authority to
determine its population.  Id. at 785.  It described the inherent problem in using census figures
which may be out-of-date by the time they are needed.  Id. at 786.  It stated: “This conclusion is
strongly supported in all Texas cases, which have come to our attention, wherein the question of
determination of population of a city is involved.”  Id.  The Court concluded by quoting a holding
from a case involving a statute authorizing municipalities over 2,000 in population to regulate
certain utilities:
“[T]he ascertainment of the fact of the requisite population is committed to the governing
body of the city or town . . . . [I]t must be presumed that [the city] did determine the fact of
the existence of the necessary population, and such presumed finding can only be attacked on
the ground of fraud, and that this ground must be both pleaded and proven by the
[complaining] party . . . .”  

Id. at 786-87 (quoting City of Farmersville v. Texas-Louisiana Power Co., 33 S.W.2d 272, 276
(Tex. Civ. App.—Dallas 1930), rev’d on other grounds, 67 S.W.2d 235 (Tex. 1933)).  The Court
said the holding “can and should be applied with equal force in determining the issue in the present
case.”  Id. at 786.
      Appellees have not presented us with any authority contrary to La Porte.  And there is no
suggestion that Burleson’s determination of its population, which in this context is the number of
its inhabitants, was conducted fraudulently.  Therefore, the trial court should have accepted it.
      Appellees do, however, urge us to rely on the definition of “population” in the Code
Construction Act: “‘Population’ means the population shown by the most recent federal decennial
census.”  Tex. Gov’t Code Ann. § 311.005(3) (Vernon 1998).  They say that the terms
“inhabitants” and “population” are interchangeable in the statutes.  They find support for that
argument in sections 257.113 and 257.119 of the Transportation Code in which the term
“inhabitants” was changed to “population” when the provisions were codified in the
Transportation Code.  Tex. Transp. Code Ann. §§ 257.113, 257.119 (Vernon Supp. 2003).   
      We do not find Appellees’ argument persuasive.  In the absence of a definition of the
legislative use of the term “inhabitants,” La Porte is the controlling authority.  By not applying
La Porte, the trial court abused its discretion in finding that Burleson’s ETJ was one-mile instead
of two miles.  Butnaru, 84 S.W.3d at 204.
      We sustain Burleson’s issue.  We do not reach its other issues.

Conclusion
      Having sustained Burleson’s issue regarding the determination of the number of its
inhabitants, we reverse the order for temporary injunctive relief and deny Appellees’ application
for a temporary injunction.

                                                                   BILL VANCE
                                                                   Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Order reversed and rendered
Opinion delivered and filed June 11, 2003
[CV06]
