1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00368-CV 

__________________

CITY OF PATTON VILLAGE, TEXAS, Appellant

V.

CONCERNED CITIZENS AGAINST WRONGFUL ANNEXATION 

BY PATTON VILLAGE, RANDALL T. HYDE, JONATHAN FIFE, 

AND HOLLY HESSONG, Appellees 

__________________________________________________________________

On Appeal from the 457th District Court

Montgomery County, Texas

Trial Cause No. 20-02-02477-CV 

__________________________________________________________________

MEMORANDUM OPINION

In this interlocutory appeal, the City of Patton Village (the “City”), 

appeals the denial of its plea to the jurisdiction in a lawsuit filed by a 

group of plaintiffs (the “Plaintiffs”), an unincorporated association named 

Concerned Citizens against Wrongful Annexation By Patton Village, and 

three owners whose lots were annexed by the City, Randall T. Hyde, 
2

Jonathan Fife, and Holly Hessong.1 In their petition, the Plaintiffs

alleged that defects in the procedures followed when the City adopted two 

annexation ordinances, one in 1992 and the second in 2004, made the 

annexation ordinances invalid. According to the Plaintiffs, the property 

was not annexed because the two annexation ordinances were void, 

leaving the areas the City annexed including the Plaintiffs’ lots outside 

the then existing territorial boundaries of the City.

In response to the suit, the City filed a plea to the jurisdiction. In 

its plea, the City asserted that the statutes of limitations that applied to 

the Plaintiffs’ claims were statutory prerequisites to the court’s right to 

maintain jurisdiction over the Plaintiffs’ suit against the City, a 

governmental entity. And it asserted the statutes of limitation as 

affirmative defenses to the Plaintiffs’ claims. The trial court considered 

the City’s plea by submission and signed an order denying the plea. After 

that, the City filed a timely notice of appeal. We note our jurisdiction over

the parties and the appeal.2

1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8) (authorizing 

interlocutory appeal from denial of a plea to the jurisdiction). 

2Id. 
3

On appeal, the City challenges Hyde’s, Fife’s, and Hessong’s 

standing to challenge the validity of the 1992 and 2004 annexation 

ordinances. The City also challenges the trial court’s exercise of 

jurisdiction over Hyde’s, Fife’s, and Hessong’s annexation claims. 

According to the City, the statutes of limitations that apply to the 

Plaintiffs’ claims are jurisdictional prerequisites to the Plaintiffs’ right to 

maintain their suit. And for the first time, the City asserts the trial court 

lacks jurisdiction over Hyde’s, Fife’s, and Hessong’s statutory- and 

governmental-takings claims. 

Turning to the claims of Concerned Citizens, the City argues that

the various statutes of limitations that apply to the Plaintiffs’ claims bar 

all claims asserted by Concerned Citizens. The City also argues that the 

statutes of limitation are jurisdictional prerequisites as to Concerned 

Citizens claims too, which bars Concerned Citizens from suing because it

didn’t sue the City until 2020, long after the statute of limitations that 

apply to any claims possibly held by the homeowners they represent had 

expired.

Given the allegations in the Plaintiffs Original Petition, their live 

pleading, we disagree with the Plaintiffs that the 1992 and 2004 
4

Ordinances are void. We further conclude the Plaintiffs may not, more 

than a decade after the annexation Ordinances were passed, challenge 

the validity of the ordinances when they failed to establish the 

Ordinances are void. Without establishing the Ordinances are void or 

that Local Government Code Chapter 43.908’s limited waiver of 

immunity applies, the trial court did not have jurisdiction over the 

Plaintiffs’ claims challenging the validity of the Ordinances at issue 

here.3 As we explain below, the Plaintiffs failed to establish the trial court 

had jurisdiction over their claims, so we reverse the trial court’s order 

denying the City’s plea. 

I. Background 

The City of Patton Village is a Type A general-law municipality,

located in Montgomery County. In July 1992, the City passed Ordinance 

92-003 (the 1992 Ordinance), annexing a tract of property connected by 

a road leading into the subdivision to what was then the City’s eastern 

boundary, Tram Road. Through the 1992 Ordinance, the City proclaimed 

it was annexing Section #1 of King’s Country Estates, a subdivision of 

186.2875 acres in Block A-552, Montgomery County, in the W.S. Taylor 

3Tex. Loc. Gov’t Code Ann. § 43.908.
5

Survey. A document attached to the 1992 Ordinance contains a legal 

description of the tract being annexed, a description consistent with the 

tract in the 1992 Ordinance. It describes the tract as a subdivision 

comprised of four blocks containing 40 lots, owned by King’s Country 

Limited. When the City passed the 1992 Ordinance, however, the City’s 

mayor, Kenneth Jenkins, failed to have the ordinance recorded in the 

official property records of Montgomery County within thirty days, which 

is the period a municipality is allowed by Texas law to record an 

annexation ordinance in the official property records maintained by the 

county or counties where the property that was annexed is located.4

In 2004, the City passed a second ordinance, Ordinance 2004-001, 

(the 2004 Ordinance). In the 2004 Ordinance, the City annexed another 

tract of property, a tract adjacent to what was then the City’s existing 

eastern boundary, Tram Road. Like the tract the City annexed in 1992,

the 2004 tract is in Block A-552 of the W.S. Taylor Survey. The 2004 tract 

also shares part of its eastern border with the western border of the tract 

annexed by the City in 1992. That said, the tract annexed in 2004 is a

smaller tract, and it doesn’t share its entire eastern border with the 

4Id. § 41.0015 (Notice of Municipal Boundary Change). 
6

western border of the tract the City annexed in 1992. The 2004 Ordinance 

describes the area the City annexed that year as follows:

The area is less than one half mile in width and extends from 

one half mile north of Short Street to one half mile south of 

Long Street. The Western boundary is Tram Road (City of 

Patton Village). The width of the area is one thousand four 

hundred five feet (plus or minus). The area is partially 

contiguous with King’s Country Estates on the east (which 

was incorporated into Patton Village on 14 July 1992).5

We have included a screenshot of the map taken from the documents the 

City recorded in Montgomery County in 2004 after passing the 2004 

Ordinance. The map depicts the area the City annexed in 1992, showing 

the area on the map in stripes. The area, which is striped, is also marked

“SITE.” While not the purpose of the map attached below, the map in 

general also shows the area the City annexed in 2004. Generally, the 

areas just above and below a narrow strip of land tying the western 

boundary of the area annexed in 2004 to Tram Road are included in the 

territory the City annexed in 2004.

5The “on the east” clause in the 2004 Ordinance is ambiguous given 

where the clause is placed. Yet from the maps and other evidence the 

parties attached to their motions for summary judgment, the “on the 

east” clause can be construed to mean: “The area [annexed in 1992] is 

partially contiguous [on its eastern border] with King’s Country 

Estates[.]” To be clear, no one has ever argued the 2004 Ordinance 

describes a tract lying east of the tract the City annexed in 1992. 
7

The documents the City filed of record in Montgomery County in 

2004 include the following: (1) a copy of section 41.003 of the Local 

Government Code, which under circumstances the statute describes 

creates an irrebuttable presumption that the area a municipality 

annexed is a part of the municipality; (2) a lot and block map, which 

appears to have been taken from a survey map of Block A-552 of the W.S. 

Taylor Survey of the area describing the four blocks and 40 lots owned by 

King’s Country Limited; (3) a certified copy of the City’s 1992 Ordinance; 

(4) a description of the area the City annexed in 1992, which describes 
8

the King’s Country Estates as a subdivision of 186.2875 acres in Block A552 of the W.S. Taylor Survey, consisting of 40 lots and four blocks owned 

by King’s Country Limited; and (5) the map, a copy of which we have 

included above.

The 1992 Ordinance references a survey attached to the ordinance. 

The survey consists of the lot and block map of the King’s Country 

Estates, which was taken from a survey of Block A-552. We have included

the lot and block survey map the City filed of record in 2004 below.
9

In February 2020, Concerned Citizens, along with Fife, Hyde, and 

Hessong sued the City asking the trial court for a judgment declaring the 

1992 and 2004 Ordinances void. According to the Plaintiffs, the 

descriptions in the 1992 and 2004 Ordinances used to describe the areas 

the City annexed do not close—meaning the borders around each area 

the City annexed do not describe shapes with sides that close on each of 

the shape’s sides. The Plaintiffs’ petition alleges that by failing to 

describe the areas in the annexations by using metes and bounds 

descriptions that close, the two Ordinances were void from the date they 

were passed. The Plaintiffs further alleged that the City of Patton Village 

never provided services to the residents living in the areas it annexed in 

1992 or 2004.6 The Plaintiffs’ Original Petition raises five claims:

• A claim alleging the Ordinances are void, which Plaintiffs 

based on their theory the descriptions of the areas annexed 

are insufficient because the areas annexed are not described 

by their metes and bounds and do not describe shapes that 

close. 

• A claim alleging the Ordinances are void, which the Plaintiffs 

based on their claim that the City has no records to prove 

those living in the areas annexed requested that the City 

annex the areas and no records to show that before annexing 

6According to the petition, “[t]he residents of the Area are provided 

water by T&W Water Service, required to have their own private 

propane, have independent septic systems not city sewer, etc.” 
10

the areas the City treated the areas as part of the City by 

providing the areas with services from the City.

• A constitutional-takings claim, which the Plaintiffs based on 

their theory that the City had “taken the tax revenues, permit 

fees, and other property of the Plaintiff[s] through what can 

only be styled as eminent domain or an inverse taking.”

• A statutory-takings claim under the Private Real Property 

Rights Preservation Act (PRPRPA), an Act that allows private 

real property owners who comply with the requirements of the 

Act to sue political subdivisions to determine whether a 

“governmental action of a political subdivision results in a 

taking under this chapter.”7

• A Uniform Declaratory Judgments Act (UDJA) claim, which 

Plaintiffs based on their claim that the 1992 and 2004 

Ordinances, when passed, were void. Specifically, the

Plaintiffs’ UDJA claim requested the trial court to declare the 

1992 and 2004 Ordinances “void and [to declare] the residents

of the Area[s] were never properly annexed into Patton 

Village.”8

When the City answered, it asserted governmental immunity 

prevented the Plaintiffs from suing the City on the claims in the 

Plaintiffs’ petition. The City’s amended answer, its live pleading alleges: 

• Section 43.901 of the Local Government Code bars the 

Plaintiffs’ claims because no one sued the City seeking to 

annul or review the 1992 or 2004 Ordinances within four 

years of the City’s adoption of the Ordinances.

• Plaintiffs’ takings claims are barred because their claims are

untimely, so they are deemed to have consented to the 

annexations, and the Plaintiffs do not have takings claims 

because levying taxes and fees on the areas annexed do not 

constitute takings under the Texas Constitution.

7See Tex. Gov’t Code Ann. § 2007.021. 

8See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a).
11

• Plaintiffs’ takings claims are barred by the two-year statute 

of limitations.

• The Plaintiffs lack standing to bring statutory-takings claims 

against the City under the PRPRPA.

• Even assuming the PRPRPA waives the City’s immunity from 

suit on one or more of the Plaintiffs’ claims, the Plaintiffs’ 

claims are still barred because they failed to sue the City 

within the 180-day period the PRPRPA provides for 

individuals to bring claims under the PRPRPA.

• Because Fife’s, Hyde’s, and Hessong’s claims are barred as a 

matter of law, Concerned Citizens failed to establish it has 

standing to assert a derivative claim on anyone’s behalf.

• And last, the Plaintiffs’ claims are barred by the doctrines of 

laches, waiver, and estoppel.

After the City answered and before the City filed its plea to the 

jurisdiction, the Plaintiffs and the City filed motions for summary 

judgment. As relevant here, the summary-judgment evidence shows 

Hyde, Fife, and Hessong bought their lots long after the City annexed the 

areas where they live. The evidence shows the three individuals named 

as parties in the suit acquired their deeds to their respective lots as 

follows: 

(1) Hyde ----- December 2013;

(2) Fife ----- November 2015; and 

(3) Hessong ----- August 2014. 

The summary-judgment evidence also shows no one before Hyde, Fife, 

and Hessong had ever challenged the validity of the City’s 1992 and 2004 

Ordinances.
12

When the trial court ruled on the motions for summary judgment, 

it signed an order finding the City’s ordinances didn’t meet the statutory 

requirements necessary “to constitute a legal annexation.” Relying on 

that conclusion, the trial court granted the Plaintiffs’ motion and denied 

the motion filed by the City. The trial court also granted the Plaintiffs’

request for declaratory relief. In granting declaratory relief, the trial 

court declared in its order that those living in the areas the City annexed 

in 1992 and 2004 “are not, and have never been, residents” of the City. 

Still, because the trial court left open the Plaintiffs’ claims for monetary 

damages, the trial court’s orders on the parties’ cross-motions for 

summary judgment were not final. As to the damages claims, the trial 

court said it would take the issue of damages up later and decide whether 

the Plaintiffs were entitled to damages “as a question of fact.”9 

Several weeks after the trial court’s ruling on the motions for 

summary judgment, the City filed a plea to the jurisdiction. Mostly, the 

City argued the City’s Ordinances were not void due to the lack of a metes 

and bounds description. And it argued that when the various statutes of 

9In the same order, the trial court denied the City’s cross-motion for 

summary judgment. 
13

limitations were applied to the Plaintiffs’ claims, which the City argued 

were jurisdictional prerequisites to the Plaintiffs maintaining the suit, 

the Plaintiffs could not establish the legislature had waived the City’s 

immunity from the Plaintiffs’ claims. The statutes of limitation the City 

relied on in the trial court and that it relies on here are:

(1)The Local Government Code section 43.901, which creates a 

conclusive presumption that persons in an area annexed have 

consented to the area’s annexation if two years have expired 

from the date an annexation ordinance is adopted and no 

action challenging the municipality’s adoption of the 

ordinance was initiated within two years;

(2)The Local Government Code section 51.003, which creates a 

conclusive presumption of validity when no one challenges the 

validity of an ordinance by the third anniversary of the date 

the ordinance was passed; and 

(3)The Texas Civil Practice and Remedies Code section 16.051, 

which creates a residual, four-year limitations period for 

actions to recover real property.10

The City argued that once the City established the legislature did not 

require municipalities to describe property lying within the 

municipality’s extraterritorial jurisdiction by a metes and bounds 

description and that Plaintiffs’ claims were untimely, the burden shifted 

10Tex. Loc. Gov’t Code Ann. §§ 43.901, 16.051; Tex. Civ. Prac. & 

Rem. Code Ann. § 16.051.
14

to the Plaintiffs to demonstrate their claims were not barred by the 

limitations periods that applied to their claims.

When the Plaintiffs responded, they argued that because they were 

claiming the 1992 and 2004 Ordinances were void from the time the 

Ordinances were passed, the statutes of limitation the City the City 

relied on in its plea were irrelevant to their claims and the statutes did 

not bar their claims. To explain why the Ordinances were void, the 

Plaintiffs asserted the City’s failure to describe the areas it had annexed 

by using a metes and bounds description that closed made both 

Ordinances void. The Plaintiffs also noted the City had not proven that 

it complied with other statutory requirements in proposing and adopting

the Ordinances. According to the Plaintiffs, since the City failed to 

present evidence proving that it had complied with everything required 

of it by the legislature when exercising its powers of annexation, the City 

could not rely on the presumption that those living in the areas the City 

annexed had consented to being annexed. According to the Plaintiffs, the 

legislature could not have intended a conclusive presumption to arise 
15

under section 43.901 when a municipality failed to comply with the notice 

and filing requirements of Chapter 43.11

As to the City’s argument that the Ordinances must be conclusively 

presumed valid under the presumption created by Local Government 

Code section 51.003, the Plaintiffs responded stating section 51.003 does 

not apply to an act “that was void at the time it occurred.”12 Last, relying

on their claim that the annexations are void, the Plaintiffs argued the 

residual, four-year statute of limitations applicable to suits to recover 

real property doesn’t apply to actions against governmental entities when 

the act the governmental entity passed is void. 

In November 2021 and without explanation, the trial court denied 

the City’s plea to the jurisdiction. Shortly thereafter, the City filed its 

notice of appeal.13

II. Standard of Review 

On appeal, the parties agree the City is a Type A general-law 

municipality.14 Under Texas law, municipalities are local governmental 

11Tex. Loc. Gov’t Code Ann. § 43.901.

12Id. § 51.003(b)(1).

13Tex. R. App. P. 26.1(b), 28.1(b). 

14Tex. Loc. Gov’t Code Ann. § 6.001.
16

entities, which enjoy immunity from suit unless their immunity from suit 

has been waived.15 When immunity applies to a governmental entity, it 

“bars suit against the entity altogether.”16 Governmental entities may 

raise governmental immunity claims in several ways, which includes by 

filing a plea to the jurisdiction.17

We review a trial court’s ruling on a plea to the jurisdiction as a 

question of law.18 In a plea to the jurisdiction, governmental units “may 

challenge the pleadings, the existence of jurisdictional facts, or both.”19

When the governmental unit’s plea challenges the existence of 

jurisdictional facts, the standard applicable to the motion mirrors the 

standard applicable to a party’s traditional motion for summary 

judgment under Texas Rule of Civil Procedure 166a(c).20 Thus, the 

15See id. § 271.151(3); Lubbock Cty. Water Control & Improvement 

Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014).

16Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). 17Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 664 (Tex. 

2019). 

18Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 

2016).

19Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 

(Tex. 2018). 

20See Sampson, 500 S.W.3d at 384; Mission Consol. Indep. Sch. Dist. 

v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). 
17

governmental unit carries the initial burden to present evidence 

establishing the trial court does not have subject matter jurisdiction over 

the plaintiff’s claims.21 To avoid dismissal, the “plaintiffs must raise at 

least a genuine issue of material fact to overcome the challenge to the 

trial court’s subject matter jurisdiction.”22

In our review, we consider all evidence the parties filed in the trial 

court relevant to the jurisdictional issues to decide whether the trial court 

ruled properly on the plea.23 “When the evidence submitted to support 

the plea implicates the merits of the case, we take as true all evidence 

favorable to the plaintiff, indulging every reasonable inference and 

resolving any doubts in the plaintiff’s favor.”24

To decide whether the trial court erred in denying the City’s plea, 

we must resolve three questions. First, we must decide whether the Local 

Government Code requires municipalities like the City to include metes 

and bounds descriptions when they annex property through their 

exercise of their extraterritorial powers of annexation. Second, based on 

21Sampson, 500 S.W.3d at 384. 

22Id. 23Miranda, 133 S.W.3d at 227-28. 

24Sampson, 500 S.W.3d at 384. 
18

the Plaintiffs’ claim the Ordinances lack a sufficient description of the 

areas the City annexed, we must decide whether the 1992 Ordinance and 

the 2004 Ordinance are void because the areas the City annexed are not 

described by their metes and bounds with descriptions that close. Third, 

should we decide the Ordinances are not void, we must then decide 

whether the trial court had jurisdiction over any of the Plaintiffs’ claims.

III. Analysis 

A. Is a metes and bounds description required by statute?

In the trial court, the Plaintiffs alleged the 1992 and 2004 

annexations are void, not merely voidable, because the City didn’t include 

metes and bounds descriptions of the property in the Ordinances it 

passed.25 According to the Plaintiffs, because metes and bounds 

descriptions were not used, the areas the City annexed are not 

sufficiently described so that by following the angles and markers 

described in the Ordinance one may determine where the boundaries of 

the territory annexed are and that the boundaries of the territory 

annexed close.

25Metes and Bounds, BLACK’S LAW DICTIONARY (9th ed. 2009) (“The 

territorial limits of real property as measured by distances and angles 

from designated landmarks and in relation to adjoining properties.”).
19

On appeal, the Plaintiffs rely on Local Government Code section 

43.012 to support their claim that a metes and bounds description in an 

annexation ordinance is required. However, the Plaintiffs never cited 

that statute in their petition or in their motion for summary judgment. 

To be clear, section 43.012 requires a metes and bounds description in an 

annexation ordinance when an area the municipality annexes is an area 

that it owns. Section 43.012 provides: 

The governing body of a Type A general-law municipality by 

ordinance may annex [an] area that the municipality owns 

under the procedures prescribed by Subchapter C-1. The 

ordinance must describe the area by metes and bounds and 

must be entered in the minutes of the governing body.

But section 43.012 has no application here. No one alleged or proved the 

City owns any property lying in the area the City annexed in either 1992 

or in 2004. The City didn’t annex those areas under the power the 

legislature gave it to annex areas a municipality owns. Rather, the City 

annexed the areas at issue here under the powers the legislature 

delegated to municipalities to annex territory lying outside their existing 

boundaries but within their extraterritorial jurisdiction, an area lying 

within a defined distance from a municipalities’ existing territorial 
20

boundary—a distance that varies depending on the population of the 

municipality.26 

For our purposes, the Plaintiffs never claimed the areas the City 

annexed in 1992 or 2004 don’t lie within the City’s extraterritorial 

jurisdiction. The Ordinances and evidence in the record show that when 

the City annexed the areas in 1992 and 2004, both areas had borders tied 

to the City’s then existing eastern boundary, Tram Road.27 

The effect of a municipality’s annexation of property in its 

extraterritorial jurisdiction is set out in Local Government Code section 

42.022, which provides: 

(a) When a municipality annexes an area, the extraterritorial 

jurisdiction of the municipality expands with the annexation 

to comprise, consistent with Section 42.021, the area around 

the new municipal boundaries. 

(b) The extraterritorial jurisdiction of a municipality may 

expand beyond the distance limitations imposed by Section 

26Tex. Loc. Gov’t Code Ann. § 42.021(a)(1) (one-half mile for 

municipalities like the City with fewer than 5,000 inhabitants). We note 

the Plaintiffs did not plead facts or claim that the City’s 1992 Ordinance 

is arguably void, either in whole or in part, based on a claim that some of 

the territory the City annexed in 1992 lies outside the City’s one-half mile 

extraterritorial jurisdiction. We express no opinion about whether such 

an argument might have merit, as appellate courts may not consider 

issues not raised in the trial court. Mack Trucks, Inc. v. Tamez, 206 

S.W.3d 572, 577 (Tex. 2006) (citing In re B.L.D., 113 S.W.3d 340, 350-52 

(Tex. 2003)).

27Id. 
21

42.021 to include an area contiguous to the otherwise existing 

extraterritorial jurisdiction of the municipality if the owners 

of the area request the expansion.

. . . 28

The legislature also recognized a difference between a municipality’s 

owning property in an area and a municipality’s annexing property lying 

in its extraterritorial jurisdiction. Local Government Code section 43.014 

makes that clear, as it states: 

A municipality may annex [an] area only in its extraterritorial 

jurisdiction unless the municipality owns the area.

Thus, in section 43.014 the legislature required a metes and bounds 

description when a municipality is annexing property it owns. However,

the legislature did not include that same requirement in the statute 

authorizing municipalities to annex property lying in their 

extraterritorial jurisdiction.29 The legislature clearly may choose to 

impose more stringent requirements on parties in some sections of a 

statute than it does in others.30 But when it does so, we are not free to 

impose requirements on a party on a subject when the legislature chose 

28Tex. Loc. Gov’t Code Ann. § 42.022(a), (b).

29Id. §§ 42.021, 42.022.

30See Waak v. Rodriguez, 603 S.W.3d 103, 111 (Tex. 2020). 
22

not to, as instead we must comply with the legislature’s choice.31 Thus, 

we reject the Plaintiffs argument claiming the Ordinances are void 

because they lack a metes and bounds description of the areas the City 

annexed.

Next, we turn to whether the jurisdictional evidence conclusively 

establishes the Ordinances describe boundaries that, to a reasonable 

degree of certainty, can be construed to close.32 On appeal, the Plaintiffs 

argue the annexation ordinances don’t close because the property the 

City annexed isn’t described by metes and bounds. But we’ve already 

rejected that argument because the record shows the City annexed those 

areas by exercising its extraterritorial powers and not by exercising the 

power the legislature gave municipalities to annex areas they own. 

Except for the Plaintiffs’ claim the boundaries are not described by their 

metes and bounds, they have never explained why the jurisdictional 

31See PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd. P’ship, 146 

S.W.3d 79, 84 (Tex. 2004) (“When the Legislature includes a right or 

remedy in one part of a code but omits it in another, that may be precisely 

what the Legislature intended. If so, we must honor that difference.”).

32See State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 788-89 

(Tex. 1965) (noting the accepted rules of construction for construing 

municipal ordinances apply to annexation ordinances, allowing a court to 

determine whether, after applying the rules of construction, the 

boundaries of the area annexed can be construed to close).
23

evidence does not conclusively establish the boundaries close in the 

respective territories annexed in 1992 and 2004. Still, because the trial 

court might have construed the Plaintiffs arguments to require both a 

metes and bounds description and a description describing a boundary 

that closed, we must decide whether the boundaries close.

B. Do the boundaries of the areas close?

Generally, when a court is asked to construe an ordinance annexing 

land, “[i]t is the function of a court to aid construction and validity of such 

description rather than to destroy them.”33 We start with the 1992 

Ordinance. It defines the area annexed as section #1 King’s Country 

Estates, 186.2875 acres of land in Block A-552 of the W.S. Taylor Survey 

of Montgomery County, consisting of 40 Lots, 4 blocks, owned by King’s 

Country Limited. A map containing the names of some of the streets in 

Patton Village shows the general area the City annexed, and the map 

was attached to the 1992 Ordinance. The map, which was recorded at 

page 636-10-1295 in the Montgomery County’s real property records, 

identifies the area the City annexed in 1992 as “SITE.” According to the 

33State ex rel. City of West Orange v. City of Orange, 300 S.W.2d 705, 

712 (Tex. Civ. App.—Beaumont 1957, writ ref’d n.r.e.). 
24

recitals in the 1992 Ordinance, a survey of #1 King’s Country Estates was 

attached to the ordinance. The survey referenced in the Ordinance 

appears to be a document copied from a survey of Block A-552, which 

depicts the part of Block A-552 containing the forty lots in King’s Country 

Estates described in the 1992 Ordinance. We will refer to the document 

copied from the survey as the Lot and Block Survey, as it is the document 

the City recorded at page 636-10-1292 in Montgomery County’s real 

property records.

Importantly, the Lot and Block Survey contains latitude and 

longitude points, which may be used to establish the boundaries of the 

territory the City annexed in 1992. As relevant here, the Lot and Block 

Survey shows (1) exactly where the four corners are of the territory 

annexed in 1992, and (2) it shows the territory the City annexed has 

boundaries that close on four sides. Thus, the summary-judgment 

evidence shows the boundaries of the territory annexed in 1992 closes on 

four sides. 

Even though one may not identify the boundaries of the area the 

City annexed in 2004 using the Lot and Block Survey alone, the 

summary-judgment evidence nonetheless shows the boundaries of that
25

area also closes on four sides. The western boundary of the 2004 

annexation is Tram Road. In general, the 2004 Ordinance includes a call 

for distance describing that area’s width, thus defining the area that was 

annexed eastern boundary as “one thousand four hundred five feet (plus 

or minus)” from what was then the City’s existing eastern boundary, 

Tram Road. The latitude and longitude points on the Lot and Block 

Survey describe a large portion (but not all) of the eastern border of the 

area annexed in 2004, and the fact that this shared boundary is not 

exactly 1405 feet from Tram Road at every point is likely the reason there 

is a plus or minus reference in the 2004 Ordinance.

That said, the parts of the eastern boundary of the 2004 annexation

not shown in the Lot and Block Survey can be located by using the calls 

for distance in the 2004 Ordinance, the western boundary Tram Road, 

and the latitude and longitude points in the Lot and Block Survey.34

34To locate the northeastern corner of the 2004 annexation, one 

must draw a horizontal line from a point lying one-half-mile north of 

Short Street and from that draw a line horizontally from west to east onethousand-four-hundred five feet starting from Tram Road. To locate the 

southeastern corner of the 2004 annexation, one must draw a horizontal 

line from a point lying one-half-mile south of Long Street and from that 

draw a line horizontally from west to east one-thousand-four-hundred 

five feet starting from Tram Road. The remaining part of the eastern 
26

Those remaining parts of the eastern boundary that are not shared with 

the 1992 territory lie north and south of Short Street and Long Street, 

respectively, each by one-half mile. Those eastern boundaries not shared 

with the 1992 territory are 1405 feet east of Tram Road and are one-half

mile north of Short Street and one-half mile south of Long Street. 

The northern and southern boundaries of the territory annexed in 

2004 may also be derived from the calls for distance from Short Street 

and Long Steet by drawing a line to the eastern boundary described 

above. As described in the 2004 Ordinance, the northern point called for 

in the 2004 annexation is “one half mile north of Short Street[.]” The 

southern point called for in the 2004 Ordinance in finding the territory’s 

southern boundary is “one half mile south of Long Street.” To be sure, 

Short Street and Long Street dead-end at Tram Road, meaning the two 

streets don’t cross Tram Road to the east. Yet by extending a hypothetical 

line from west to east across Tram Road by the call for distance (1405 

feet from Tram Road), the northern and southern boundaries of the City’s 

border, not shown in the 1992 Lot and Block Survey, may be located with 

certainty by connecting those points to the 1992 annexation’s 

northwestern and southwestern corners, which are identified by latitude 

and longitude points in the Lot and Block Survey. 
27

annexation may be determined with reasonable certainty.35 Because the 

evidence conclusively proves the boundaries of the respective areas the 

City annexed intersect and close, we conclude the City’s Ordinances and 

annexations are not void.36

C. If the annexations are not void, does the trial court have 

jurisdiction over the Plaintiffs’ claims?

In the trial court and on appeal, the City argued the Plaintiffs lack 

standing to sue. We review rulings on standing under a de novo

standard.37

Standing is a threshold component of subject matter jurisdiction 

and requires a real controversy between the parties.38 Under Texas law, 

among the requirements of standing, a plaintiff must establish he was 

“personally injured—he must plead facts that demonstrate that he, 

35See City of Patton Village, Google Maps, 

google.com/maps/place/City+of+Patton+Village (last visited October 10, 

2022); Tex. R. Evid. 201(b); Cent. Tex. Water Supply Corp. v. Kempner 

Water Supply Corp., 645 S.W.3d 799, 803 n.3 (Tex. 2022) (taking judicial 

notice of maps). 

36See City of Bridge City v. State ex rel. City of Port Arthur, 792 

S.W.2d 217, 235 (Tex. App.—Beaumont 1990, writ denied) (concluding 

that the boundaries of the land described “in annexation ordinance could 

be made, by construction, to be certain and was thus sufficient”). 

37Heckman v. Williamson Cty., 369 S.W.3d 137, 149-50 (Tex. 2012). 

38Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 

(Tex. 1993). 
28

himself (rather than a third party or the public at large), suffered the 

injury.”39 Standing also requires that a court carefully examine “a 

complaint’s allegations to ascertain whether the particular plaintiff is 

entitled to an adjudication of the particular claim asserted.”40

If the Plaintiffs had shown that the Ordinances were void, we would 

not question their right to complain about the Ordinances at issue here. 

But having concluded the Plaintiffs’ failed to establish the Ordinances 

are void, the question is whether the Plaintiffs established standing on 

the record they created in the trial court on any of their claims. 

The summary-judgment evidence shows no one challenged the 

City’s 1992 or 2004 Ordinances until 2020, the year the Plaintiffs filed 

this suit. As previously noted, Hyde, Fife, and Hessong each bought their 

lots long after the City annexed the territory where they now live.41 Since 

Plaintiffs failed to show that they brought their claims within two years 

of the date the Ordinances were adopted and failed to show the 

39Heckman, 369 S.W.3d at 154; Farmers Tex. Cty. Mut. Ins. Co. v. 

Beasley, 598 S.W.3d 237, 241 (Tex. 2020) (cleaned up). 

40Heckman, 369 S.W.3d at 156. 

41We cannot determine from the summary-judgment evidence 

whether the individual lots the Plaintiffs now own were in the 1992 

annexation, the 2004 annexation, or as between the three lots, included 

in both Ordinances. 
29

Ordinances were challenged before they sued, we conclude they failed to 

establish the legislature waived the City’s immunity from suit on their 

claims seeking to enforce the statutory requirements of Chapter 43.42

Turning to Concerned Citizens and the claims of any members of 

that organization who were never named or identified by the parties in 

the suit, the Plaintiffs failed to present any evidence in response to the 

challenge the City raised to Concerned Citizens’ standing to show that 

any of Concerned Citizens’ members owned lots when the City adopted 

the Ordinances at issue in the suit. Thus, the only evidence in the record 

shows that all Plaintiffs with an interest in the litigation bought lots

more than two years after the City adopted the Ordinances at issue. Since 

the Ordinances are not void, and because the Ordinances were not 

challenged within two years after they were passed, we must presume 

the Plaintiffs predecessor in title consented to the “municipal ordinance 

42Tex. Loc. Gov’t Code Ann. §§ 43.901, 42.908(b). We have assumed

without deciding the two-year period under Chapter 43 that applies to 

the presumption of consent did not begin until the City filed the 

Ordinances of record in 2004. But even when the Plaintiffs are given the 

benefit of any doubt about the effect of the City’s delay in filing the 1992 

Ordinance, the Plaintiffs do not have standing to assert Chapter 43 

claims in this suit. 
30

defining [the] boundaries of or annexing the area[.]”43 It follows that

Hyde’s, Fife’s and Hessong’s predecessors in title and all Concerned 

Citizens’ members consented to the City’s adoption of the Ordinances at 

issue here. 

Besides failing to prove the Ordinances were void and that any of

the Plaintiffs held an ownership interest in the property the City annexed 

in 1992 or 2004, the Plaintiffs also failed to show their predecessor in title 

assigned any claims giving them a cause of action against the City. Under 

Texas law, “[t]he right to sue is a personal right that belongs to the person 

who owns the property at the time of the injury, and the right to sue does 

not pass to a subsequent purchaser of the property unless there is an 

express assignment of the cause of action.”44 As to real property, “[i]t is a 

fundamental rule of law that only the person whose primary legal right 

has been breached may seek redress for an injury.”45 For that reason, 

“[w]ithout a breach of a legal right belonging to the plaintiff no cause of 

43Tex. Loc. Gov’t Code Ann. § 43.901.

44Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 424 

(Tex. 2010); see also Hous. Water-Works Co. v. Kennedy, 8 S.W. 36, 37 

(Tex. 1888).

45Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976). 
31

action can accrue to his benefit.”46 As to standing, once the City alleged 

the Plaintiffs didn’t have standing and established that Hyde, Fife, and 

Hessong didn’t acquire the deeds to their lots until long after the 

ordinances at issue were adopted, the Plaintiffs—including Concerned 

Citizens—had the burden to demonstrate that a member of Concerned 

Citizens had standing to sue.47

Yet when they responded to the City’s plea, the Plaintiffs failed to 

show that any member of Concerned Citizens owned his or her lot when 

the City annexed the territory at issue here. Concerned Citizens, like 

Fife, Hyde, and Hessong also never presented any evidence showing they 

held assignment from any previous owners who owned the lots when the 

City passed the Ordinances in 1992 or 2004. So, having concluded the 

Plaintiffs failed to establish a valid basis on which to claim the 1992 and 

2004 Ordinances are void, we further conclude the only proper way 

available to challenge the annexations was through a quo warranto 

46Id. 47See Heckman, 369 S.W.3d at 150 (burden of proof on plaintiff to 

establish standing); S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 308 

(Tex. 2007) (to prove an association has standing, the members of the 

association must show they have standing to sue on their own); Tex. Ass’n 

of Bus., 852 S.W.2d at 447 (same). 
32

proceeding—an action filed by the State challenging the City’s allegedly 

irregular use of its annexation authority under the allegations in the 

petition the Plaintiffs filed below.48

We further conclude that the City is immune from the Plaintiffs’ 

remaining claims. As to the Plaintiffs’ PRPRPA claim, the Plaintiffs 

never alleged or claimed the territory the City annexed was beyond the 

City’s extraterritorial jurisdiction. Under the PRPRPA, a municipality’s 

exercise of its extraterritorial powers of annexation is excluded from the 

PRPRPA.49 Despite the existence of a limited waiver of governmental 

immunity under the PRPRPA, nothing in the limited waiver of immunity 

in the PRPRPRA operates to waive a municipality’s immunity from suit 

under the pleadings and summary-judgment evidence in the record 

before us here.50

The Declaratory Judgments Act claim also doesn’t survive the 

City’s plea. Parties may not use the Declaratory Judgments Act to 

circumvent the doctrine of sovereign immunity and recover damages 

48See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436-37 

(Tex. 1992). 

49Tex. Loc. Gov’t Code Ann. § 2007.003(a)(3). 

50Id. § 2007.004(a).
33

from the state.51 And because we have determined the trial court lacked 

jurisdiction over the Plaintiffs’ claims challenging the Ordinances, the 

Plaintiffs cannot transform their claims into UDJA claims based on the 

pleadings they filed in the trial court to avoid the City’s plea.52 Because 

the 1992 and 2004 Ordinances are not void on this record, the Plaintiffs 

also don’t have standing to challenge the Ordinances by bringing a claim 

under the UDJA.53

Turning to the Plaintiffs’ constitutional-takings claims, the 

Plaintiffs globally alleged the City failed to strictly comply with the Local 

Government Code when annexing their lots and applying them to a 

public use. Yet the Plaintiffs alleged no facts to support their claim that 

the City made a public use of their lots. Moreover, the evidence in the 

record shows that Hyde, Fife, and Hessong live in homes built on their 

lots. The evidence shows the City collects ad valorem taxes on the 

appraised values assessed on the lots, values assigned by the 

Montgomery County Appraisal District on the improvements and lots 

51See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 

S.W.3d 849, 855-56 (Tex. 2002).

52See City of Hous. v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) 

(per curium). 

53See Alexander Oil, 825 S.W.2d at 436-37. 
34

Hyde, Fife, and Hessong own. The City also proved it has been levying 

ad valorem taxes on the areas since at least 2012 based on the affidavit 

of Sudie Dawson, the City’s Secretary, who averred in her affidavit that 

she has personal knowledge of that fact since she began working for the 

City in 2012. In response to the City’s evidence, the Plaintiffs didn’t 

produce any controverting evidence to show that the City isn’t collecting 

ad valorem taxes or to prove the City took their property and applied it 

to a public use. 

To be sure, we fail to see how the Plaintiffs have takings claims 

when the evidence shows all the City has done is collect ad valorem taxes 

on their property. The Texas Supreme Court put it this way: “The 

constitutional inhibition against taking private property for public use 

without compensation has reference solely to the exercise of the right of 

eminent domain and not to taxation[.]”54 Without proof, Plaintiffs’ 

takings claims don’t survive the City’s plea when they did nothing more 

than prove the trial court with a conclusory allegation claiming the City 

took their property for public use. 

54State ex rel. Pan Am. Prod. Co. v. Texas City, 303 S.W.2d 780, 782 

(Tex. 1957). 
35

IV. Conclusion

To sum it up: We conclude: (1) Texas law does not require areas a 

municipality annexes lying in the municipality’s extraterritorial 

jurisdiction to be described by its metes and bounds; (2) the summaryjudgment evidence shows the boundaries of the areas the City annexed 

in 1992 and 2004 close; (3) the jurisdictional evidence shows the Plaintiffs 

failed to establish the legislature waived the City’s immunity on the 

Plaintiffs’ PRPRPA claim; (4) the Plaintiffs cannot circumvent the City’s

governmental immunity by recasting their claim as a claim under the 

UDJA; and (5) the jurisdictional evidence shows the Plaintiffs lack 

standing to sue the City on a constitutional-takings claim.55 Accordingly,

we reverse the trial court’s order denying the City’s plea to the 

jurisdiction and render judgment dismissing the suit without prejudice.56

55See Tex. Local Gov’t Code Ann. §§ 43.001-.908; see also Alexander 

Oil, 825 S.W.2d at 436-37.

56To establish a court’s jurisdiction, the plaintiffs must show that 

their injuries “will ‘likely’ . . . be ‘redressed by a favorable decision.’” 

Heckman, 369 S.W.3d at 154-55 (quoting Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560-61 (1992)). On the record the parties developed below, we 

cannot say the Plaintiffs could, if the case were remanded, establish their 

standing to sue. Yet because the record is not fully developed, we will 

dismiss the suit without prejudice so that if the Plaintiffs determine they 

have a good faith basis to claim the City’s annexation ordinances are void 
36

REVERSED AND RENDERED.

_________________________

HOLLIS HORTON

Justice

Submitted on March 23, 2022

Opinion Delivered November 3, 2022

Before Kreger, Horton and Johnson, JJ.

for a reason they didn’t plead below, they may file a new suit and plead 

that claim. But because the petition now before us does not show the 

Plaintiffs even have a claim that could result in a favorable decision, we 

will dismiss and not remand.