## In the Court of Appeals S econd Appellate District of Texas

at Fort Worth

___________________________ No

. 0 2

- 19

- 004 12

- CV

___________________________

On Appeal from the 355th District Court Hood Cou nt y, Texas Tr ial Court No. C2019200
Before Kerr, Womack, and Wallach, JJ. Memorandum Opinion by Justice Womack 

### C OMANCHE 

### P EAK 

### R

ANCH 

### , LLC, L

AURA 

### G RISHAM 

### , R ONALD 

### H ASTY 

### , D IANNE 

### H ASTY 

### , M ICHAEL 

### W. T HOMAS AS 

### T RUSTEE FOR 

### M ICHAEL 

### W. T HOMAS 

### F AMILY 

### T RUS T 

### , H ARVEY 

### T HOMAS AS 

### T RUSTEE FOR 

### H ARVEY 

### I KE 

### T HOMAS 

### F AMILY 

### T RUST 

### , AND 

### S ANDRA 

### W I LL IAM S 

### , Appel lants

V


### . C ITY OF 

### G RANBURY 

### , T EXAS 

### , Appellee2 MEMORANDUM OPINION
I. I NTRODUCTION A group of property owners fil e d suit to challenge appellee City of Granbury ’ s annexation of land. In this acce lerated appeal , 1 the property owners complain of the granting of the city ’ s p le a to the jurisdiction. Because the p roperty o w ners ’ complaints m ust be brought in a quo warran t o proceeding , we affirm the trial court ’ s dismissal but mod ify the jud g m en t to reflec t that the dismissal is withou t preju dice

. II. B ACKGROUND 2
The Property Owners are a ppellants Comanc he Peak Ranch, LLC, Laura
Gr isham, Ron ald Hasty , Dia nne Hasty, Micha e l W. Thomas as Trustee for the Michael W. Thomas Family Trust, Harvey Thomas as Tru stee fo r th e H a rvey Ike
Thomas Fam ily Trust, and Sandra Willi ams , each of whom own property within the

ex trat erritorial jurisdiction of Granbu ry. 3 They , and othe r s not involved in this appeal, filed suit against the city seeki ng decla rato r y j udgment and ancillary inju nctive

1 See Tex. Civ. Pr ac. & Rem. Code Ann

. § § 5 1. 0 14(a)( 8) , 10 1. 001(3)(B); T ex. R. App. P. 28 .1.

2 Because this case w as resolved by the trial co urt based on the plead ings, the facts are taken from the plea dings on file a t the t i m e of the hearing on the ple a to the jurisdiction

.

3 In their response to th e plea to the j urisdiction, t he Prop erty Ow ners state that they “ own separa te parcels of property, so me of which is entirely within the City ’ s extra territorial jurisdiction ( ‘ ET J ’ ) a nd some of which is only partially within the Cit y ’ s ETJ. ”3

relief as well as attorneys ’ fees based on what they allege is the “ City ’ s ‘ hurry u p ’ eff ort to involu ntarily annex proper ty in its extraterri t orial juri sdiction (ETJ) to ‘ beat the
clock ’ before pending (and now ex tant ) le gislation to preclu de such involuntary
annexation took effect. ”
It is undi sputed t hat the City sen t the Property Owners proposals for

“ development agreeme nts ” that, i f signed, would have forestalled annexation. The parties ’ dispute centers on whether the city ’ s pr oposals meet the requirements of the applicable statutes and, if not, whether th e failure to meet those re quir ements renders
the annexation void. In their o riginal petition, the Property Owners allege that the City “ ignored the requ irement for proper legal descriptions of the properties herein that they a ttempted t o anne x in the City ’ s proposed D evelopment A greements. ” They further contend that t he C ity “ ignored the clear terms of the Local Government Code to protect agriculturally exempt ( ‘ AG Exempt ’ ) property from involuntary
annexation. ” Argu

ing that t he C ity f

ail ed to off

e r d evelopment a greements that

co mplied with the Local Gove rnment C o de, the Property Ow ners conclude that

“ [ t ]his led to a void effort to annex . . . . ”
Acco r ding to the Property Ow ners, the City adopted Resolution No. 19

- 12 on April 2 , 2 019 , declaring its inte ntion to annex land totaling 2,470 acres, including t h eir land, a ll of which ar e “ AG Exempt propertie s . ” The C ity sent letters dated April 3, 2019, to the Property Owners informing them of the City ’ s proposal to a nnex th eir
pro p ert y . T he City sent additional letters two days later whic h recognized that the4

property wa s “ AG Exempt ” and “ attached a development agreement that is being offered to you unde r Section 43.016 of the Texas Local Government Code. ”
A c cord ing to th e se c ond letter,
If you [Property Owner

] do execute the agr e ement, you will be exempt from a nnexation by the City for the period of time set forth in the agreement (10 y ears); provided, however [,] that under t he terms of the agreeme nt, any dev el o p ment of your pro p erty would all ow the City to commence annex ation.
The letter fu rther provided that if the Property Owner “ decline [s] to make the agreement, the City may proceed to annex your property. ” According to the Pro pert y Owner s, they “ attemp ted to negot iate mo difications of the prop osed D evelopmen t A greement s that w ould b e in har mony with the

statute
. ” However, no agreement was reached , and at it s June 4, 2019 meeting, the City approved five annexation ordinanc es. In response to the lawsui t, t he Ci ty filed an an s wer, g ener a ll y denying the allega tions, and a p le a to the jurisdiction , asserting that a ny challenge to the annexation must be brought by a quo warranto proceeding

. The Property Owners
filed a respon se to the ple a to the jur isdiction

. Aft er a hearing , the trial c ourt granted the pl e a to the juri sd iction and entered an order dismissin g the c ase with prejudice. This appeal followed.5 III. D ISCUS SION
In their a ppeal, the P rope rty Owners present t en issues , 4 most of w h ich att ack
the City ’ s argu m ent that quo warran to is the only ave n ue to challe nge the annexation.
Because the a ppropriateness of a quo warranto proceeding t o the fa cts of this c ase is
d ispositive of al l of the issues, we will only address that issue

.

4 In th e ir “ Issues Pres en te d , ” the Proper ty Ow ners state 1. Did the trial court err in granting C ity ’ s Plea to the Jurisdiction?
2

. Did the trial c ourt have jurisdiction?
3. Did the co m p laints of Property Owners that the Ann exation Ordinances
we re void have to pro cee d by a quo warrant o proceeding , or were they properly brough t in this collateral acti o n?
4. Are C ity ’ s Annexation Ordinances void?
5. Wa s City re quired to prop ose a Developm e n t Agreement that complied wi th Tex. Local Gov ’ t Code §§ 43.0 16 a nd 212.172 t o have aut hority to ann ex the prope rt i es owned by Plaintiffs ( “ Property Owners ” ) in City ’ s E TJ?
6. Did City ’ s p rop osed Development Agreement c omply wit h Tex. Local Gov ’ t Code § § 4 3

. 016 and 212.172?
7. Did C ity ’ s proposed Development Agreeme nt comply with the pr operty description r equirement o f Tex. Local Gov ’ t Code § 212.172 (c) ?
8. Was sovere ig n immunity w aived ?
9. Did Property Owners have stan ding to s ue?
10. Was una uthorized and u n substantiated self

- servin g argumen t by amici curiae [ Texas Municip a l Leagu e, wh ich filed a letter brief wi th t he t rial court] about supposed legi slative history competent or admis sible?6

A. Standar d of Rev ie w A plea to the jurisdi ction is a dilatory plea that seeks dismissal of a case for lack
of su bject matter ju risdiction. Bland I ndep. Sch. Dist. v. Blue , 34 S.W. 3d 547, 554 (T ex. 2000 )

. The claims asserte d may form the co n text in which a dila tory plea is rais ed , b ut the plea sh ould be decided without delving into the merits of the case. Id. Whether a
court ha s subject matter jur isdiction is a legal question. S tate v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002)

. A trial co u rt ’ s ruli ng on a plea to the jurisdiction is review ed
de no vo. Suarez v. City of Tex

. City , 465 S.W.3d 623, 632 (T ex. 201 5).
A trial court m ust g rant a p lea to the jur i sdiction , after provi ding an appropriate opportunity to amend, when the pleadings do not state a c ause of a ction upon which
the trial court has jurisdiction. Harris C ty. v. Sykes , 136 S.W.3d 635, 639 (Tex. 2004)

. If a plea to the jurisdi c tion challeng es the existen c e of jurisdictional f ac ts, we consider
relevant evidence su bmitted by th e pa rties whe n necessar y to resolve the jurisdictional issues raised, just as the trial court must do. Tex. Dep ’ t of Parks & Wi

ldlife v. Mirand

a , 1 33 S.W. 3 d 217 , 227 (T ex. 2004); Bla n d , 34 S.W.3d at 555. If the evid ence creates a fact question o n the jur

isdi ctional i s sue, then the trial court cannot grant the plea to
the jurisdiction , and the fa ctfinder will resolve the q uestion. Miranda , 133 S

. W.3 d at
22 7

– 28. But if the relev a nt evidence is un disput ed or f ails to raise a fact question on
the jurisdi ctio nal issue, t h e t ria l court rules on the plea as a matter of law

. Id. at 228.
The standard mirror s our review of summary ju dgment s where we ta ke as true a ll
evid ence fav or able to the non

- movant, indul ging every reasonable inference and7

resol ving any d oubt s in the non

- movant ’ s favor. City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009).
B. Applicable Law Generally, th e only appropria te mechanism f o r chall engin g the validi ty of an
annexation is a quo warranto proceeding, in which “ the State act s to protect its e lf and the good of the public generally, through the duly c hosen age nts of the State who
have full control of the proceeding. ” Al exander Oil Co. v. S e

guin , 825 S.W.2 d 434 , 437 (Tex. 1 99 1 ) ( quoting Fuller Springs v. State ex rel. City of L ufkin , 513 S.W.2 d 1 7, 19 ( Tex. 1974) )

. The purpose of a quo warranto proc eeding is to question the right of a
p erson or corporation, includin g a m unicipality , to exe rc ise a public f ranchise or
office. Id. at 436

– 37

. Q uo warranto pro ceedings are brough t in the name of t h e State by the attorney general or a district or county attorney. Tex. Ci v. Prac. & Rem . Code
An n. § § 66.0 01

– .00 3

. Quo warran to p ro ceedings s erve the purpo se of av oiding the specter of numerous successive suits by priva t e partie s attac king the val idity o f annexations.
Ale xander Oil Co. , 825 S.W.2d at 437. Because t he judgment s in suits brought by private parties are binding on ly o n those par t ie s, conflicting results m ight be reached in subsequent suits by other individua ls. Id

. By requi ring quo w arran t o proceedings , these conflicting results are avoided because the judgme nt settles the validity o f the
annexation on behalf of all pr operty h o l de rs in the affe cted are a. Id.8

A quo warranto proceeding “ is the proper way to c halle nge procedural faults

suc h a s the adequacy of a service plan, lack of notice, lack of a quorum for hearing,
and ‘ other deficiencies in the procedure of ad opti ng the anne x ation or dinance. ’ ” Town of Fa irview v. Law

ler , 2 52 S.W.3d 8 53, 856 (

Tex. A pp.

— Dallas 2008, no pet.) ( quoting
C it y of San Antonio v

. Hardee , 70 S.W.3d 207, 210 (Tex. App.

— San Antonio 2001, no pet.) ) . T he State , as opposed to an individual land ow ner, must also bri ng an action

“ to question irregular use of the delega ted annexa tion authority. ” City of Shavano Park

v. A rd Mor, Inc. , No. 0 4

- 14

- 00781

- CV, 2015 WL 6510544 , at *5 (Tex. App.

— San Antonio Oct. 28, 2 015, no pet. ) (mem. op. on reh ’ g )

. Even thou gh it is t he State ’ s prerogative to bring a pro warranto procee ding, under limited circumstances, a private party may colla t e rally attac k an an nexation
ordi nance as void, as opposed to vo idable. Suncha se Capital Grp. , Inc. v. City of Cr andall , 69 S. W. 3d 5 94, 59 6 (T ex. App.

— Tyler 2001 , no pet
. )

. The determination of whether
an individual landowne r, as opposed to the State in a quo warra nt o proce eding , has standing to challenge annexation turns on w hether the challenge attac ks a ci ty ’ s authority to an ne x th e a rea o r merely complain s of a viola tion of statutory procedure. City of Shavano Park , 2015 WL 6510544 , at *5 ( citation om i tted )

. “ In div iduals have
b een allo wed to bring private causes of action when challenging annexa tion of territory that (i) exce eds statut or y size limitations, (ii) is within the corporate limits of another municipality, (i i i) is not contiguous with curren t city limits, and (iv) has a bounda ry de scri ption that does not close. ” Town of Fair view , 252 S .W.3d at 856

. But9

procedur al i rreg ulari t ie s in the exercise of a city ’ s annexation power do n ot render an
annexation voi d but may render an ann ex ation voidabl e . Hardee , 70 S.W.3d at 211;
Ci ty of Richmond v . Pec

an Grove Mun

. Util

. Dist

. , No. 01

- 14

- 00932

- CV, 2015 WL
4966879 , at *2 (

Te x. App.

— Housto n [1 st Dist. ] Au g . 20, 20 15 , pe t. denied ) (mem.
op .).
In decidi ng whether a private party has sta ndi n g to chal lenge an annexati on, an
appe llate court must decide whether the challenge attac k s the city ’ s authority to annex
the area in question o r simply com plains of some vi olation of sta tuto ry procedure.
Werthmann v. Cit

y of Fort Worth , 121 S.W.3d 803, 8 0 6 (T ex. A pp.

— Fort Wo rth 2 0 03,

no pet. ). Merely showin g an irregularity in a city ’ s exercise of its annexation auth ority is not enough. Id

. I n Werthmann , this court add re ssed the issue of “ whether the requirements of
Texas Local Government Code [S] ection 4 3.052(b)

– (c) are merely p rocedura l
limi tations and/or whether t hey are substantive limi t ations on a m unicipality ’ s

aut hority to annex land. ” Id. at 806. At that time, Sec tion 43. 0 52 r e quired a municipality to prepare an ann exation plan that specifically identi fie d annexation s that
may occur begin ning on the third anniver sary of the date the annexation plan is adopted. Looking a t two prior Te xas court de ci sions, we noted t hat “ [C] hapter 43 of
the Texas Local Government Code and the legi sla t ive hi story o f the 1999 amendments refer to the plan requi rements as procedural. ” Id. ; s ee Ha r dee , 70 S.W .3d at 214 (h olding that th e lando wners lacked sta nding to cha ll en ge ann exation based on10

procedural v

iolations of Sect ion 43.052, the City Ch a rter , and the City Code ) ; C ity of Balch Springs

, Tex. v. Luc

as , 101 S.W.3d 116, 119, 122 (Tex. App.

— Dallas 2 0 02, no
pet. ) ( dismissing the case as p rocedural based o n allegation s that th e City wa s not acting in accordance with its own annexation plan , was attemp t ing to ann ex property under an excepti on t o the applica ble statut e, and wa s attemptin g to circumvent the

statute by arbitrarily omitting cert ain parcels from the annexati on ordi n ance ). Therefore, we agreed that the provi sions of Section 43.052 are “ proce d ural

r equireme n ts for annexation rather than limitations on a municipality ’ s inhere nt autho rity t o annex la nd. ” Werth mann , 121 S.W.3d at 807

. Similarly, pro p erty owners ’ clai ms of “ viola ti ons of the stat utory procedure set forth in C ha pter 43 b a sed on t h e C ity ’ s failu r e to give proper notice of the [third public ] hearing and fa ilure to pro vide more th an a d raft service plan ” have been reject e d as “ purely proc edural defec ts
. ” City of San Antonio v. Summerglen Prop. Owner s Ass ’ n , Inc

. , 185 S.W.3d 74, 84

– 8 5 (Tex. App.

— San Antonio 2005, pet. denied ) ; see also
Alexander Oil Co

. , 825 S.W.2d at 438 (ho ldin g that allegation s regarding whether
service plan was adequat e and quor um w as re q uire d to conduct hearing were matters
that co uld be raised in quo warranto pr o ceedings bu t not in a private challenge). As noted above, individ uals have been allo wed to b ring p r ivate causes o f action
when challenging a nnexation of terr i tory that ( i) exce eds stat utory size limitations, (ii) is within the corporate limi ts of another municipality, (iii) is not contiguous with

cur rent city li mits, and (iv) has a bounda ry descr iption that does not c lose. See11

Alexander Oil C

o . , 825 S.W.2d at 43 8. “ The co mmon trait in these cas es is whether the municipali ty exceeded the annexation autho r it y delegated to it by the Legislat ure. ” Id. Accordingly , we must determine whether the Pro perty Ow ne rs ’ claims are based on a procedural d efect in the anne xation proce ss or on the City ’ s exceedi ng its annexation authority as deleg ated by the le gislature

. Summerglen Prop. Owners Ass ’ n , 185 S.W.3d at
84. Chapter 43 of the Texas Local Gove rnment Cod e govern s muni cipal annexation, including a municipali ty ’ s ge neral autho r it y to annex and the proc edures it

mu st follow. Town of Fairview v. Stover , No. 05

- 0 1

- 01318

- CV, 2 002 WL 1981371 , *3 (Tex. App.

— Dallas Aug. 29, 2002, no pet.) (not designated for publication)

. Section
43.016 sets li mits on the ab ility o f a mun icipality to a nnex land qualified for agricultura l o r wildlife managemen t u s e or a s timber land. As relevan t to this case, it provid es : (b) A mun icipalit y may not annex an area to w hich this section applies unless: (1) the m uni cipality offers to make a d eve lopment a g r eeme nt with t he lan d o wner under Sect ion 212.172 t hat would: (A) guarant ee the conti nuation o f the extraterritorial status of the a rea; and (B) aut horize the enforcement of all regulations and planning autho rity o f the municipalit y that do n ot interfer e w ith the use of the a rea f or agriculture, wildlife management , or timber; and12 (2) the lan d o wner declines to make the agreement de scribed in Sub division ( 1).
Tex. Loc. Gov ’ t Code Ann. § 43.016 (b)

. Texas Local Gove rnm ent Code Sectio n 212.1 72 s ets ou t t h e re quiremen t s of
the dev elopme nt agreement. It provides in part: (b) The govern ing body of a municipality may make a written contr act with an ow ner of land that is located in the extraterritorial jurisdiction of the muni cip ality to: ( 1) guaran te e the c ont

i n uation of the ex traterrito rial status of the land and its immunity from anne xation by t h e municipality; ( 2) extend the municip ality ’ s planni ng autho rity over the land by providing for a development plan to be prep ared by the la nd owner and ap pro ved by th e munici pality unde r which ce r tain general uses and d evelopment of the land are authorize d ; (3) aut ho rize enforcement by the mun icipalit y of c ertain municipal land use and development regulations in th e same manner the re gul ations are enforced wit hin t h e mu nicip ality ’ s boundaries; (4) authorize enforcement by the municipality of land use and d evelopment regulations other than thos e that a pply w ithin the municipality ’ s boundaries, as may be a greed to by the la ndow ner and th e m unicip ality; (5) provi de f

or in fras tructure fo r the land, in cluding: ( A) streets and r oads; (B) street and road d rainage; (C) land d rainage ; and ( D) wate r, was te water, and other uti lity systems; (6) authorize enforcement of environmental regul ati ons;13 (7) provide for t he a nn e xa tion of th e land as a whole o r in parts and to provide for the terms of annexati o n , if annexation is agreed to by the pa rties; ( 8) s pecify the uses and development of the land be fore and after annexation, if annexation i s a greed to by the pa rties ; or ( 9) include other law fu l terms a nd consideration s the parties consider appropriat e . Tex. Loc

. Gov ’ t Code Ann. § 212.172 ( b)

. A mo ng oth er re quirements, a n agreement under this subchapter “ must . . . contain an adequate legal de script ion of the l and. ”
Id

. § 2 12.172(c)(2). In addition, “ [t]he total duration of the contract and any

succ e s sive renewals or e xtensions may not ex ceed 45 ye ars. ” Id . § 212.172(d).
C . Application of Law to Fac ts
The Property Owners contend that this ca se fa ll s under th e excepti on to the general ru le that their chal lenges can only be brought in a quo warranto p r oceeding

. They contend t hat “ be cause [the] City was without auth ority to adopt them, ” the
annexati on ordinances are void. A ccordi ng to the Property Owners, to b e aut hori zed

t o annex ETJ property, i t was necessary that a d evelop m e nt a greement compliant with
the statuto ry req uirement s be p roposed to th em. Here, although a d evelo pment

a greement was proposed, the Property Owners allege tha t it was not c ompliant with
either T ex a s Loca l Government Cod e Sections 43.016 or 212.1 7 2

. Specifically, they
contend that “ the De velopm ent Agreement (a) did not guarantee the continuation of the ETJ status and exemption from annexation, an d (b) d id no t contain a prope rty14

descripti on. ” The Pr op er ty Owners argue that b e c ause the proposed Development Agreement did not compl y with e ither Section 43.01 6 (b)(1)(A) or any of the annexation provisions of Section 212.172(b), it did not comply wi th Sect ion 43.016 (b ).
Par t icula r ly, “ it was n ot ‘ under ’ [ Se ction ] 2 1 2.1 7 2(b). ” Here, the pr oposed d evelopment a g reement consis ted of nin e pa ges, includ ing
the fol lowing provision s : S ECTION 1.

CONDITIONAL IMMUNITY FROM ANNEXATIO N
A

. The City guarantee s t h e continuation of the extraterritor ial statu s o f t h e Property, its immunity from involuntary annexation b y the Ci ty, an d its immunity fr om City property taxes , for the term of th is Ag reement , subject to the provisions of this A gree me nt. Except as provide d in this Agreement, th e City agrees not t o a nne x t h e Property [ ] and agrees not to involuntarily institut e proce edings to annex the Property

.

. . . . SECTION 3 EVENTS THAT TERMINATE IMMUNITY FROM ANNEXATION
A. The occur rence o f any of the following events shall const itute a pe tit i on for v olu nt ar

y annexation b y the Owner and sh all terminate the guarante e of im munity from annexation: . . . If any p ortion of the Propert y is conveyed to a person or entity other than the Owne r [with certain exc eptions].

. . . . SEC TI ON 4 TERM
S ub jec t to Section 3 of this Agre ement, th e term of this Agreem en t (the “ Term ” ) is ten (10) years f rom the date that the City Manager ’ s signature to this Agreement is acknowledged by a p ublic15

n otary. Unless the Prop erty i s annexed pu rsuant to S ection 3, th e Own e r and all of the Owner ’ s hei rs, suc cessors and assigns sha ll be d eemed to have filed a petition for voluntary annexation before the end of the Term, for annexation of the Property to be completed on or after t he en d of the Te rm . The anne xation of th e Pro p e rty at the end of the term shall b e deemed a voluntary an nexatio n unde r any applicable law now or then existing. Prior to the end of the Ter m, the City may commence procedures t o an nex the Property.
As set out above, i n t h eir pe t i t i on f or d ecla ra tory relief, the Propert y Owners generally con tend th at the ann exation ordinances are void for failure of the Cit y to comply with Sections 43.016 and 212.172 of the Lo cal Government Code. First , they complai n that the devel opmen t a g r eement “ did not guar an tee the continuation of the ETJ status and exe mption from annexation. ” T hey emphasize the langu age “ ma y not

anne x . . . u nless ” that is found in Section 43.016(b)

. However , the Property Owners confuse the requ irem e n t of being “ offer ed ” a de velopmen t ag re ement with
accep tance of t he agre ement. In this case , there was no development agreement
reached . Adequacy of the proposed deve lopment agreement, like ad equacy of a
servic e plan, is a de fect in the proced ure of ad o p ting t he ann exation ordin ance and , th er efore, must be brought in a quo wa rranto procee ding. See Alexander Oil Co

. , 825 S.W.2d at 438 ( “ Ale xander ’ s allegation s directed at whether the service pl an was adequate and whether a quorum was required to con duct t he hearing a re matters th at could be ra ised in a direct att ack by quo war ranto, but ar e insufficient grounds for a private challenge. ” ).16

Second, the Property Owners complain that the d evelopment agr eement did

not contain a prope rt y description. But Sec ti on 212.172 (c) (2) requires only an

“ ade qu ate legal descr

iptio n. ” T h e City note s that “ the legal descriptio n was requ ested from each landowner through the ‘ R ’ number wit h the taxing entity documents [] as a

m eans to identify the p roperty w i t hin the mapping and to confirm the e xistenc e of

a ny qua li fying ex e mptions to said pr operty
. ” Again, th e development agreements sent
to the property owners were not fi nal, but only proposal s . Because the Proper ty
Ow ners did not accept t h e proposed development agreements, a final agree ment was

ne ve r entere d

. 5 I n addition, to the exte nt the property description requirement se r ves the purpo se of notice, deficient notice is a procedural defect that does not render an
annexation void. See J

i menez v. City of Aransas Pass , No. 13

- 17

- 00514

- C V, 2018 W L
65 65090, a t *2 (

Tex. App.

— Corpus Christi 2018 , no pet. ) (mem. op.) (holding th at the statutory three

- year plan requirement exists to give the public better notice of proposed city gro wth and serv i c es and that deficient notice is a proc edural def ect that
does not ren der an annexation void ).
The Prop ert y Owner s r ely on Laidlaw Waste Sys

. (Dallas), Inc. v. City of Wilmer , 904 S.W.2d 656 (Tex. 1995), as having a “ compar able i ssue ”

— “ whether the metes

a n d bounds de sc ription of the annexed property was proper. ” Id. at 660. H o we ver,

5 The P roperty Owner s ’ reliance o n T own of Fairview for the proposition th a t
“ ‘ lack of consent ’ was n ot merely a ‘ proce dural issue ’ ” is misplaced

. 200 2 WL 198 1371, at * 3. In that ca se, consent was re q uired because the operative statute did not permit un ilateral annexation. Id.17

Laidlaw l ooked to the metes and bounds description only as it p ertained to the issu e addre ssed b y the court , which was “ w hether a Type A general

- law municipality may

annex a c o ntiguou s area pursuant to [ S] ection 43.024 of th e Local Gov er nment Co de , wh en the annexation causes it to e xceed the statutory area limi tatio ns that were
ap plic a b le when [ th e muni cipal ity ] initially incorporated under 6.001 of the Code. ” Id.
at 657.
Her e , c ent ral to both of the Property Owners ’ cont ent ions are pr oced ural
req ui rements for annexat i on rather than limitation s o n a municipality ’ s inherent authority to annex l and. S ee Wer thmann , 121 S.W. 3d at 807. T he Property Own ers do not dispute the inher e n t authority o f the City to involuntarily annex p roperty in its
E TJ , sub je ct to complianc e with the Local Go vernment Code, under th e law in
existence at the time of this annexation

. Rather, th ey challenge only whether the C i ty has follow e d the prope r procedur e s in doing so. As such, their challenge s mu st be
bro ug ht in a quo wa r ranto proceeding . Therefore, the trial court did not err in
dismi ssing th eir declaratory relief action. But because the claims of the Property
Owners can s t

ill b e brought by the State through a quo warrant o proceeding , t he

o rder sh ould b e modified to re flec t that the dismissal is without prejudice. See
S unchase Capital Grp

. , 69 S.W.3d at 598 (affir m ing the trial court ’ s o rder of dismissal
but modif

ying it by stri k

i ng the lan guage “ that Plaintiffs take nothing by this suit ”
b ecau se “ if th e trial co urt di d not have jurisdiction to act, then it could not order that Appellants take nothing by their suit ” ) ; bu t see Sykes , 136 S.W.3d at 636

– 37 (holding18

that an order grant i ng a governmen tal unit ’ s plea t o th e j urisdi ction shou ld be “ with prejudice ” when the c la imant ha s failed to state a c laim that is cognizable under the
T exas Tort Claims Ac t).
IV. C ONCL USION Having held that the claims brou g h t by the Property Owners in this case can only be brought by the Sta te in a quo warr anto proceeding , but h oldi ng that t he judgment should be m o dified to reflec t that the d i smissal is without pr ejudice, we
affirm the trial court ’ s ju dgment as modif ied.

/s/ Dana Womack

D a n a Wom ack Justice
Delivered: A pril 23, 2020