### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00523- CV

Round Rock Lif

e Connect ion Chu rch, Inc.; Teddy J. Straub; Orlena Mehrabian; Hossain Mehrabian; Luciano Rivera; Tim Hub ble; Judy H ubb le; and

Mary Jo G ree nough , Appellan ts

v. The City of Rou nd Rock, T exas, Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 09- 604- C368, HO NORAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Round Rock L ife Connection Church, I nc., Teddy J

. Straub, Orlena Mehrab ian, Hossain Mehra

bian, L uciano Rivera, Tim Hubble, J u d y Hubble, and Mary J o Gre enoug h (collec tively , “the L andowne rs”) soug ht both a temporar y injunction enjoining the City of Round Rock (“Round Rock”) from annexing their proper ti es an d a judgme nt decla ring void ordinanc es adopted by Round Rock that annexed their proper ties and that require d proper ty owner s, including the L andowne rs, t o pay the costs of connecting to Round Rock’s water and sewe r ut ility lines. I n the alterna tive, the L andowne rs soug ht a writ of mandamus requirin g R o u n d R o ck to provide municipal service s to the L andowne rs on the eff ective date of their proper ties’ annexation. RoundRock filed a “plea in abate ment” asser ting the L andowne rs lacke d standing to bring suit. The trial 1 court sustained Round Rock’s ple a and dismissed the matter

.

Be cause Round Rock’ s plea addre ssed only the L andowne rs’ standing to challeng e the annex ation of t heir properties and did not speak to the other c laims raised by the L andowne rs,

we will aff

irm that part of the trial court’s judgme nt dismiss ing for lack of standing the L andowne rs’ challeng e to the annexation ordinanc e and, without rea ching the merits, reve rse that part of the ju d g ment dismiss ing the other claims and rema nd for further proce eding s consistent with this opini on.

DISCUSSIO N Stan ding an d the Landown ers’ Annexation Chal lenge
A challeng e to a trial court’s subject-matter jurisdiction is revie wed de novo. Texas Dep’ t of Parks & W

ildlif e v. Miranda , 1 3 3 S.W .3d 217, 228 (Tex. 2004). I n revie wing a private
p ar ty ’s s tanding to challeng e an annexation, a reviewing court must decide whether the chall en ge attacks the municipality ’s power or authority to annex the are a in question or only complains of some violation of statutory proce dure by the municipality

. See City of Port Isabel v. Pinnell , 161 S.W .3d 233, 238 (Tex. App.—Corpus Christi 2005, no pet.); W erthmann v. City of

Fort W orth , 121 S.W .3d

Although sty led a plea in abate ment, bec au s e it challeng ed the L andowne rs’ standing , 1 Round Rock’s plea was actua lly a plea to the jurisdiction. “A plea in abate ment is u s ed to alleg e fac ts a rising outside of the petition that se t forth re asons, other tha n venue or

jurisdiction, why the case should not proce ed or should be dismiss ed.” Wil liam V. Dorsane o I I I , Texas Liti gation Guide § 70.03[7] [a] (2010). A pl ea to the j urisdiction seeks dism issal of t he case on the ground that the court lac ks subject-matter jurisdiction. Id. § 70.03[6] . Standing is a component of subjec t-matter jurisdiction. Texas Ass’n of Bus. v. Tex as Air Contr ol Bd. , 852 S.W .2d 440, 445-46 (Te x . 1993). 2803, 806 (Tex. App.—For t 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 m unicipality g ener ally must annex land pursuant to an annexation plan and g ive three y ear s’ notice of its intent to annex. See Tex. L oc. Gov’t Code Ann. § 43.052 (West 2008); City of Rock wall v. Hughes , 246 S.W .3d 621, 623 (Tex. 2008). I f an are a is exempt from the three -y ear notice require ment, a municipality may annex tha t a rea by use of abbre viated proce dures with le ss notice of the city ’s i ntent to annex. See Tex. L oc. Gov’ t Code Ann. §§43.061- .065 (West 2008); Hughes , 246 S.W .3d at 623.

I n pertinent parts, section 43.052 (entitled “Municipal Annexation Plan Required” ) of subchapte r C (entitled “Anne x ation Procedur e for Are as Annexed Under Municipal Annexation Plan”) re ads as f

ollows:
(b) A municipality may annex an are a identif i ed in the annexation plan only

as provided by

this section. (c) A m unicipality shall prepa re an annexation plan that specific ally i dentifies annexations that may occur beg inning on the third anniver sary of the date the ann exation plan is adopted. The municipality may amend the plan t o specific ally identify annexations that may occur beg inning on the third anniver sary of the date the plan is amende d.

* * * (h) This section does not apply to an are a proposed for annexation if: (1) th e are a contains few er than 100 separ ate trac ts of land on which one or more residential dwelling s are located on eac h trac t . . .

* * * (i) A municipality may not circ umvent the require ments of this section by proposing to separ ately annex two
3or more are as descr i bed by Subsection (h)( 1) if no rea son exis ts under g ener ally acc epte d municipal planning p ri nciples and prac tices for separ ately annexing the are as. If a mu nicipality proposes to separately annex areas in violation of this section , a person r es i d ing or owning land in the area may petition the mu n i ci

p ality to include the area in the municipality’s annex ation plan. . . .

Tex. L oc. Gov’ t Code Ann. § 43.052 (empha ses adde d).

Round Rock notified the L andowne rs in Fe bruar y 2009 that it intended to annex their
proper ties locat ed al o n g East Old Settlers Road. I n response , pursuant to section 43.052(i), the
L andowne rs petitioned Round Rock to include their proper ties in the city ’s annexation pla n. See 2
id. § 43.052(i). Round Rock denied their reque st, and the city council in May 2009 voted to annex

eac h of the L andowne rs’ prope rties.

The L andowne rs filed suit, seeking both a temporar y injunction enjoini n g R o u n d Rock from annexing their proper ties and from requiring the L andowne rs to pay the costs of hooking
up to Round Rock’s water and sewe r u t i lity lines, as well as a judgme nt decla ring void the ordinanc es adopted by Round Rock that annexed their proper ties and that require d proper ty owner s, including the L andowne rs, to pay the costs of connec ting to the water and sewe r utilit y lines. I n the

a lternative, pursuant to section 43.056( l ) of the local g overnme nt code, the L andowne rs soug ht a wri t of mandamus requiring Round Rock to provide municipal service s to the L andowne rs o n the

Are as exempt from a municipality ’s three -y ear annexation plan may be annexed afte r only 2 30 day s’ notice of the first hear ing on the proposed annexation, rathe r than afte r three -y ear s’ notice of intent to annex. See Tex. L oc. Gov’t Code Ann. § 43.062(b) (West 2008). Thus, if Round Rock had g rante d the L andowne rs’ pe tition to include their prope rties in the city ’s anne x ation plan, that would have had t he effec t of delay ing any actua l annexation of t ho s e p roperties by a mi nimum of three y ear s. 4eff

ective date of their properties’ annexation. See id. § 43.056( l)

. I n re s ponse, R ound Rock filed a “ple a in aba tement” a sserting the L andowne rs lacke d standing to bring suit.

The trial court’s order is titled “Or der of Dismissal on Plea in Abateme nt” and rec ites that the court hear d the plea in abate ment of Def endant , C ity of Round Rock, included in
para g raph I I of Def

endant’ s orig inal answe r. I n pertinent part, Round Rock’s plea aver red the following :
[The L a

n d o w n e rs’] Petition alleg es that the ordinanc es annexing their proper ties are invalid beca

use [R ound Rock] failed to comply with various proce dural require men ts of Chapter 43, Texas L ocal Gover nment Code. I t is well settled law in the State of Texas that proce dural irreg ulariti es in municipal annexation ordinanc es can be challeng ed only in a quo warranto proce eding broug ht by the State of Texas throug h the County Attorney , District Attorney or the Attorney Gene ral. There fore , this a ction should be dismissed because of [t he L andowne rs’] lack of standing and/or c apac ity to bring this action.

After hear ing the parties’ leg al arg uments, the trial court g rante d Round Rock’s plea and dismiss ed the suit. Unless an annexation is wholly void, that is, exceeding a m u n icipality ’s power or authority to annex, or the L eg islature has expressly g rante d a private righ t t o ch alleng e the annexation in some manner , a quo war ranto proce eding broug ht by the State is the only proper means of attacking a municipality ’s annexation in court. Hughes , 246 S.W .3d at 627. Private challeng es
to annexation ordinanc es have been sustained as exceeding a municipality ’s authority and thus held void when: (1) the annexation g oes bey ond the statutory siz e l i m i tations; (2) the municipality 3

See Tex. L oc. Gov’t Code Ann. § 43.055 (“Ma x imum Amount of Annexation Eac h Yea r”) 3 (West 2008). 5attempts to annex are as within the corpor ate limit s of another municipality ; (3) the municipality

seeks to annex are as not contig uous with the municipality ’s own limit s; and (4) the municipality 4 attempts to annex an are a with a boundary descr iption that does not close. Alexande r Oil Co. v. City of Seguin , 825 S.W .2d 434, 438 (Tex. 1991); see City of W est Orange v. State ex rel. City of Orange , 613 S.W .2d 236, 238 (Tex. 1981) (attempted annexation of territory not contig uous with municipality ’s own limit s); City of W aco v. City of McG regor , 523 S.W .2d 649, 652 (Tex. 1975) (attempted annexation of territory within corpor ate limit s of another municipality ); Deac on v. City of Euless , 405 S.W .2d 59, 64 (Tex. 1966) (attempted annexation of territory exceeding statutory siz e limit ations); State ex rel. R o s e v. C ity of LaPorte , 386 S.W .2d 782, 789 (Tex. 1965) (attempted annexation in whi ch b o u n dary of annexed territory did not close using descr iption contained in ordinanc e). The common trait of these case s is that the municipality did not possess statutory authority to undertake annexation. Alexande r Oil , 825 S.W .2d at 438. I t was not si mply a matter of the municipality ’s fa i l i n g t o comply with proce dural require ments. Rather, the municipality lacke d authority

to pursue anne x ation at all. The L andowne rs asser

t the a nn e xa ti o n o f th e ir proper

ties is void beca

use Round Rock did not have the authority to circ umvent the require ments of local g overnme nt code section 43.052.
See Tex. L oc. Gov’ t Code Ann. § 43.052. I n particula r, t hey arg ue section 43.052(i), which re ads in pertinent par

t as follows, is an express limit ation on Round Rock’s authority to annex.
(i) A municipality may not circ umvent the require ments of this section by proposing to separ ately annex two

A municipality may annex are a onl y i n i t s extraterritorial jurisdiction unless it owns the 4 are a. Id. § 43.051 (“A uthority to Annex L imited to Ex trater ritorial J urisdiction”) (West 2008). 6or more are as descr i bed by Subsection (h)( 1) if no rea son exis ts under g ener ally acc epte d municipal planning p ri nciples and prac tices for separ ately annexing the a

rea s. . . .

Id. § 43.052(i). I n pertinent pa rt, section 43.052(h) (1) r eads a s follows:
(h) This section does not apply to an ar ea proposed for annexation if: (1) th e are a contains few er than 100 separ ate trac ts of land on which one or more residential dwelling s are located on eac h trac t; . . . .

Id

. § 43.052(h)( 1). The L andowne rs contend that, beca use t heir tracts of l and failed to satis fy the require ments of section 43.052(h) (1), Round Rock had no authority to a nnex their proper

ties. See id. Round Rock asserts its annexation ordinances a re va lid, not void. I t further arg ues that the L andowne rs, being private individuals, lacke d standing to attack the validity of Round Rock’s annexation of their proper ties and that a quo war

ranto proce eding broug ht by the State is the only proper means of attacking a municipality ’s annexation. See Alexande r Oil , 825 S.W .2d at 436.

Co n tr a ry to the L andowne rs’ contention, section 43.052(i) is not an expre s s li mi ta ti o n

on a municipality ’s annexation authority

. Rather, it is part o f s u bchapte r 43C, which sets out annexation proce dures f

or ar eas included in the t hree -y ear annexation plans. See Tex. L oc. Gov’ t Code Ann. §§ 43.051-.057 (W es t 2 008). By its terms, section 43.052(i) simply forbids a municipality from circ umventing the require ments of that section, that is, the require ment to prepa re

a municipal annexation plan, if no rea son exis ts for separ ately annexing the are as. Id. § 43.052(i).
7Be cause the L eg islature has c lear ly indicated that the provisi ons of section 43.052 are proce dural,

the L andowne rs’ complaint that Round Rock failed to comply with the require ments of that section addre sses proce dure. See W erthmann , 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 proce dural rathe r than limit ations on municipality ’s inhere nt annexation authority ); see also Hughes , 246 S.W .3d at 6 2 7 , 6 3 1 (sec tion 43.052(i) does not cre ate substantive private rig ht for landowner to com p el arbitra tion). As such, even if the L andowne rs p ro ved R ound Rock’s allege d noncompliance with section 43.052, the annexation of their proper ties would be voidable, not void. Id. The annexation of their proper

ties not having been wholly void, the L andowne rs lacke d standing to challeng e Round Rock’s anne x ation. See H ughes , 246 S.W .3d at 627; Alexande r Oil , 825 S.W .2d at 436.
We aff irm the trial court’s judgme nt dismiss ing the L andowne rs’ challeng e of Round Rock’s anne x ation ordinanc e for lack of standing

.

Landown ers’ Other Claim s

Round Rock’s “plea in abate ment” spoke only to the L an d o wn er s’ standing to challeng e the annexation of their proper ties. Howeve r, the L andowne rs also reque sted a temporar y injunction a

nd judgme nt de clar ing that Round Rock is pr ohibited f rom requiring them to inc ur the
expense of connec ting to Round Rock’s sewe r and water lines in a man n er i nconsistent with chapte r 395 of the local g overnme nt code. See Tex. L oc. Gov ’t Code Ann. § 43.056(f) (2) (West 2008). More over, in the alterna tive, the L andowne rs soug ht a writ of manda mus requiring Round
R o ck to provide municipal service s on the eff ective date of their proper ties’ annexation. Id.

8§ 43.056( l)

. Be cause Round Rock’s plea spoke only to the L andowne rs’ challeng e to Round Rock’s

annexation ordinanc e and not to these additional claims, the trial court err ed in dismiss ing, without addre ssing, these other c laims in it s judgme nt.

CONCLUSION
W e af fi rm that part of the trial court’s judgme nt dismiss ing the L andowne rs’ challeng e to Round Rock’s ordinance an n ex i n g their properties. Wit hout expressing any opinion
reg arding the L andowne rs’ standing to pursue their additional claims or the respe ctive merits of the
L andow n ers’ asser

tions, we rever se t hat part of t he court’s judgme nt dismiss ing the L andowne rs’ other c laims and rema

nd to the court for

further proce eding s consistent with this opi nion.

____________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Henson, a nd Goodwin Affir med in part; Rever sed and Rema nded in par

t Filed: F ebrua

ry 18, 2011

9