No. 10-16-00044-CV

IN THE COURT OF APPEALS FOR THE TENTH JUDICIAL DISTRICT OF TEXAS

Karen Hall, Appellant
City ofBryan, Appellee

BriefofKaren Hall
On Appeal from judgment in cause number 12-00039l-CV-272 In 272nd District Court Hon. Travis B. Bryan, Presiding
Oral Argument Requested

Karen Hall, pro se P.O. Box 13 Kurten, TX 77862 (979)589-2920Appellant:

Appellee: Identity of Parties and Council

Counsel

Counsel

Counsel

Counsel Karen Hall
Karen Hall, pro se P.O. Box 13 Kurten, TX 77862 City ofBryan Ryan Henry 1380 Pantheon Way, Suite 110 San Antonio, TX 78232 Janis Hampton P.O. Box 1000 Bryan, TX 77805
Artin DerOhanian 1380 Pantheon Way, Suite 110 San Antonio, TX 78232

nTable of Contents Identity ofParties and Counsel ii Table ofContents i"
Index ofAuthorities v Oral Argument Requested 1 Statement ofthe Case 2 Points ofError 2 Statement ofFacts 3 Summary ofthe Argument 8 

### Argument 9 Point 1: The trial court erred in granting the City's Motion for Summary Judgment as supplemented based onresjudicata 9 Point 2: The trial court erred in grantingthe City's Motion for Summary Judgment as supplemented based oncollateral estoppel 13 Point 3: The trial court erred in granting the City's Motion for Summary Judgment as supplemented based on a statute oflimitations 15 Point 4: The trial court erred in denying appellant's Motion for Summary 

### Judgment 18

iiiConclusion 28 Prayer 30 Certificate ofService 31 Appendix 32 

### Appendix

- Supplemental bound separately

IVIndex of Authorities
Cases Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex. 1971) 12 Alexander Oilv. City ofSeguin, 823 S.W.2d 312 (Tex. App.—San Antonio 1989) 16 Barr v. Resolution Trust Corp., 837 S.W.2d 628 (Tex.1992) 9, 10 Bonniwellv. BeechAircraft Corp., 663 S.W.2d 818 (Tex. 1984) 14 City ofCelina v. City of Pilot Point, 2009 Tex. App. LEXIS 6932, * 11, 2009 WL 2750978 (Tex. App. FortWorth Aug. 31, 2009, pet. refd) 16 City ofCorpus Christi v. Taylor, 126 SW 3d725 (Tex. App.—Corpus Christi

2004) 13,17 City of Dallas v. D.R. Horton, No. 05-14-01414-CV (Tex. App.—Dallas, July 10, 2015). Pet. filed 17 City of Heath v. King, 665 S.W.2d 133 (Tex. App.

- Dallas 1983, no writ) 1, 26 City ofLubbock v. Stubbs, 327 S.W.2d 411,414 (Tex. 1959) 10,12 City of Murphy v. City of Parker, 932 S.W.2d 479 (Tex. 1995) 16 Clear Lake City Water Auth. v. Clear Lake Util., 549 SW 2d 390 (Tex. 1977) 13 Cowlingv. Colligan, 312 S.W.2d947 (Tex. 1958) 10 Creative Thinking Etc. v. Creative Thinking, 74 SW 3d 511 (Tex. App.—Corpus

Christi 2002)... 26EagleProperties, Ltd. v. Scharbauer, 807 SW 2d 722 (Tex. 1990) 14 Fort Worth Stockyards Co. v. Brown, 161 S.W.2d 549 (Tex. App.—Fort Worth 1977) 12 Franklinv. Rainey, 556 S.W.2d 583 (Tex. App.—Dallas 1977) 12 Godde v. Wood, 509 SW 2d 441 (Tex. App.—Corpus Christi 1974) 17 Hall v. City of Bryan, No. 10-05-00417-CV, (Tex. App.—Waco 2006)....3, 9, 10, 13 Hall v. City of Bryan, No. 10-10-00403-CV, (Tex. App.—Waco 2011) 4, 9 Hall v. City of Bryan, No. 10-12-00248-CV, (Tex. App.—Waco 2014) 5, 9, 25 Hudspeth v. Hudspeth, 673 SW 2d 252 (Tex. App.—San Antonio 1984) 12 Marino v. State Farm Fire & CasualtyIns. Co., 787 S.W.2d 949 (Tex. 1990)10,12 Poe v. The City ofLago Vista Cause No. D-l-GN-05-002184, 345th District Travis County(August 2, 2006) 1, 27 Powell v. Powell, 703 S.W.2d 464 (Tex. App. 1985) 12 Puga v. Donna Fruit Co., 634 S.W.2d 677, 679 (Tex. 1982) 9 Reynolds v. Murphy, 266 SW 3d 147 (Tex. App.—Fort Worth 2008) 26 Rolling Lands v. NorthwestAirport, 111 SW3d 193, 194 (Tex. App.—Texarkana 2003) 12 Simulis, LLCv. Gen. Elec. Capital Corp., 392 SW 3d 735 (Tex. App.—Houston 14*2011) 26

viSysco FoodServices, Inc. v. Trapnell, 890 SW 2d 801 (Tex. 1994) 14 Texas A&MUniv. Sys. v. Koseoglu, 233 S.W.3d 839 (Tex. 2007) 26

Statutes Tex. Civ. Prac. & Rem. Code ANN. § 16.004 (Vernon 2002) 16 Tex. Loc. Gov't Code §43.056 1, 3,20,21,27 Tex. Loc. Gov't Code §43.141 passim Tex. Loc. Gov't Code §43.148 1,8,27,30 Tex. Loc. Gov't Code §43.901 6,15,16 Tex. Loc. Gov't Code §51.003 6 Tex. Gov't Code §311.011 18 Tex. Gov't Code §311.016 18 Tex. Gov't Code §311.023 18 Tex. Gov't Code §312.005 19 Tex. Gov't Code §312.006 18 Tex. Rev. Civ. Stat. Art 970a (Municipal Annexation Act) 1, 19, 20, 21, 28

vnOral Argument Requested 

### This case raises significant issues related to amunicipality's obligation 

## regardingtheprovision ofservices to newly annexed areas. From 1963 withthe 

## passage ofthe Municipal AnnexationAct (AppendixB) to the currentversions of TEX. LOC. GOV'TCode §43.056 titled Provision ofServices to Annexed Area and TEX. LOC. GOV'T CODE §43.141 titled Disannexation ForFailure To Provide Services, the Legislature's intent is clear; similar services for similar areas. Since the recodification ofTEX. REV. ClV. STAT, article 970a into §43.056 

## and §43.141, no other case has been appealed making this acase offirst 

## impression. In City of Heath v. King, 665 S.W.2d 133 (Tex. App.

-Dallas 1983, no writ) (1 CR 10), the Municipal Annexation Act was the controlling statute. In Poe v. The City ofLago Vista CauseNo. D-l-GN-05-002184, 345th DistrictTravis 

## County (August 2, 2006), the case was not appealedby the City ofLago Vista. (3 CR 1089) (3 CR 1303-1307) (1 RR 27-29). No appellate courthas everruled on the refund ofproperty taxes and fees pursuantto TEX. LOC. GOV'TCODE §43.148. The inclusion oforal arguments will significantly aid the decision ofthis

Court.STATEMENT OF THE CASE 

## Appellant filed suit seeking disannexation ofthe approximately 105 acres labeled 6A-1 and commonly calledHwy. 21 East from the City ofBryan because 

## the City failed to provide, in good faith orunderits service plan, full municipal services pursuantto TEX. Loc. GOV'TCODE §43.141. The trial courtgrantedthe 

## City ofBryan's Motion for SummaryJudgmentas supplemented and deniedHall's Second Amended Motion for Summary Judgment.

Points of Error 

### Point 1: The trial court erred in granting the City's Motion for Summary Judgment as supplemented based on resjudicata. 

### Point2: The trial court erred in granting the City's Motion for Summary 

### Judgment as supplemented based on collateral estoppel. Point 3: The trial court erred in granting the City's Motion for Summary 

### Judgment as supplemented based on astatute oflimitations. Point 4: The trial court erred in denying appellant's Motion for Summary Judgment.STATEMENT OF FACTS 

### On July 27, 1999 the City ofBryan (hereinafter referred to as "City" or 

### "Bryan") annexed by Ordinance 1175 and pursuant to TEX. LOC. GOV'T CODE 

### §43.056 \ nine (9) separate areas comprising over 6000 acres. (1 CR 7). April 2004

- almost five years after being annexed

- the majority ofthe qualified voters 

### of the approximately 105 acres labeled Area 6A-1, commonly called Hwy. 21 East 

### ("Hwy. 21 East" or "Area" hereinafter) filed for disannexation under TEX. Loc. GOV'T CODE §43.141. After 60 days passed without the City's taking action on 

### the petition, Hall, as one ofthe signers ofthe petition, filed suit for disannexation. 

### (1 CR 9). The trial court granted the City's Motion for Summary Judgment. The
case was appealed. Hall v. City of Bryan, No. 10-05-0417-CV, 2006 WL 3438537 

### (Tex.App.—Waco 2006, pet. denied) (hereinafterreferred to as HallI). This court affirmed the trial court's ruling stating that "Hall lacked standing" to complain aboutthe service plan. 

### Aservice plan is valid for ten (10) years unless renewed. §43.056 (i). The 

### City did not renew the service plan so it expired July 27, 2009. On September 1,

1 Because this area was annexed prior to the September 1999 changes to TEX. Loc. GOV'T Code 

### §43.056 titled Provision ofServices to Annexed Area, the time for providing services is 4lA years instead ofthe 2l/2 years listed in the current version. (Appendix C).

### 2009, appellant filed another petition signedby the majority ofthe qualified voters ofArea 6A-1 requesting disannexation under §43.141. (1 CR 9). On October 27, 

### 2009, the City ofBryan denied the request and appellant filed suit seeking disannexation. The City filed acombined Plea to the Jurisdiction and Motion for 

### Summary Judgment on multiple grounds. The trial court granted the City's Pleato the Jurisdiction and Motion for Summary Judgment. The case was appealed. Hall 

### v. City ofBryan, No. 10-10-00403-CV, 2011 LEXIS 8038 (Tex.App.—Waco 

## 2006, pet. denied), (hereinafterreferredto as HallIT). This court affirmed the trial court's ruling stating that appellant's complaints amounted to "an attack on the 

### validity ofthe annexation." "Accordingly, ...she has no standing." Id. The other issues raised in the City's Motion for Summary Judgment were not addressed by this court because ofits finding that the trial court lackedjurisdiction. 

### The Opinion did, however, give clear direction to an individual seeking disannexation when it said, "a complaint that the city has failed to provide services 

## to specific property that was annexed, under aservice plan or in good faith, gives that individual property owner standing to sue the city to have the property disannexed. TEX. LOC. GOV'T CODE ANN. §43.141 (West 2008)." (Hall II). 

### On February 13, 2012 appellant again filed for disannexation. Hall v. City

## of Bryan, No. 10-12-00248-CV, (Tex. App.—Waco 2014). (hereinafterreferredto as HallIII). (1 CR 7) (3 CR 1085) (1 RR 67-68). The grounds stated in Plaintiffs First Amended Petition for Disannexation are limited to the City's failure to 

## provide, in good faith orunder its service plan, full municipal services to Area 6A1pursuantto §43.141. (1 CR7). Area 6A-1 has been annexed over sixteen (16) 

## years and still lacks sanitary sewer, fire hydrants, adequate police patrols. As of February 2012 not one shovel-full ofdirt had been turned. There had been no 

## "good faith" effortmade to provide this areawith full municipal services similarto that currently enjoyed by citizens living within the city's full-service boundaries with similar land use and population density. Hwy. 21 E. is afully developed area 

### similarto many other areas within Bryan's full-purpose boundaries. It is 

## undisputedthat full municipal services were notprovided as ofthe filing ofHall III (February 13, 2012) and therefore, this area meets the requirements for
disannexation. 

### The City filed an answer which soughtto assert sovereign and governmental immunity, official and qualified immunity, resjudicata, collateral estoppel, statute oflimitations, and contractual obligations. The City then filed acombined Pleato the Jurisdiction and Motion for Summary Judgment. The Pleato the Jurisdiction

## inaccurately claimedthatthe appellant's disannexation suitwas an attackonthe validity ofthe City's annexation. The plea also erroneously assertedthat 

## appellant's claimwas for "free" services. Appellant's claimis thatthe City of Bryanfailed to provide services to specific propertythatwas annexed, under a serviceplan orin good faith. The City's SummaryJudgment argues resjudicata, collateral estoppel, statute oflimitations, quo warranto, and sovereign immunity. 

## Appellant's response to the City's Pleato the Jurisdiction andMotion for Summary Judgment addressed each ofthe grounds assertedby the City. 

## May 7, 2012

- four days priorto the hearing onthe City's Pleato the Jurisdiction motion

- the City filed afirst supplementto itsjurisdictionplea 

## asserting sovereign immunity, quo warranto, resjudicata, collateral estoppel, statute oflimitations, the Municipal Validation Act (TEX. Loc. GOV'T CODE 

## §51.003), andpresumedconsent(TEX. LOC. GOV'TCODE §43.901). (2 CRat463, 469-474). The City also assertedthatitis notresponsible forproviding services to
annexed areas. 

## OnMay 10, 2012, appellantfiled herresponse to the City's first supplement 

## to its pleato thejurisdictionaddressing each ofthe specific claims made bythe 

## City. May 11, 2012thetrial courtheld a hearing onthe City's Pleato the

## Jurisdiction andthe Defendant City ofBryan's First Supplementto Defendant's Pleato the Jurisdiction The trial court granted the City's Pleato the Jurisdiction. 

## Thatruling was appealed. After oral arguments, this courtissued an Opinion on 

## July 24, 2014, remandingthe caseto thetrial courtononepointoferror; the lack of"regular androutine police patrols" requiredby the service plan. Boththe City and Hall filed Motions for Summary Judgment. (1 CR46- 

## 703) (3 CR 1084-1327). After a hearing on December22, 2015, thetrial court 

## grantedthe City's Motionfor SummaryJudgmentas supplementedand denied Hall's Motion for Summary Judgment. (3 CR 1623-1627). Notice ofAppeal was 

## timely filed by appellant onFebruary 5, 2016. (3 CR 1637-1638).Summary Of The Argument 

### The trial court erred in granting the City ofBryan's Motion for Summary 

## Judgment. It is undisputedthat as ofthe filing date, February 13, 2012, there were no wastewater facilities (sanitary sewer) or fire hydrants (exceptthose atthe City owned Coulter Airfield) in Area 6A-1. Hours ofvideo and personal observation 

### attestthatthe Area lacks regular and routine preventive patrols. Legislative intent 

### and statutory history shows thatwhen acity annexes an area, it is requiredto 

## providethat areawith comparable services to similarareas ofthe city. Basically,
similar services for similar areas. 

## The primary issue inthis appeal is whether acity may ignore nearly 50 

## years oflegislative efforts to prevent cities from annexing land, imposing municipal taxes onthe landowners, and failing to provide municipal services comparable to otherparts ofthe city. Analysis ofthe governing statute, Tex. Gov't Code §43.141, shows the Legislature's intentthat acitizen may seek disannexation when services are not timely provided. Because the City of Bryan 

### has monumentally failed to provide in good faith the municipal services required 

## bythe service plan, appellantis requestingthatArea 6A-1 be disannexed fromthe 

## City ofBryanpursuantto Tex. Gov'tCode §43.141 andthat all taxes and fees be refunded pursuant to Tex. Gov't Code §43.148.

8Argument
Point 1: The trial court erred in granting the City's Motion for Summary Judgment as supplemented based on res judicata. 

### The City has raised the issue ofres judicata citing this Court's ruling in Hall 

### I (Hall v. CityofBryan^o. 10-05-00417-CV, (Tex. App.—Waco 2006)). (1 CR 55). Broadly speaking, resjudicata is the generic term for agroup ofrelated concepts concerning the conclusive effects given final judgments. Barr v. Resolution Trust Corp., 837 S.W.2d 628 (Tex. 1992). See Puga v. Donna Fruit Co., 634 S.W.2d 677, 679 (Tex. 1982). Inboth Hall II(Hall v. City of Bryan, No. 10- 10-00403-CV, (Tex. App.—Waco 2011)) and Hall III (Hall v. City ofBryan, No. 10-12-00248-CV, (Tex. App.—Waco 2014)), this Court has treated the service 

### plan as acontinuous contract. The City concurs in its Motion for Summary Judgment Sec. E. titled Alternatively, the Citv asserts itcurrently provides proper services andhas always done so. (1CR61) Black's defines a "continuing contract" as, "acontract calling for periodic performances over a space oftime." BLACK'S LAW DICTIONARY, 321 (Sixth Ed. 1990). The annexation service 

### plan is not aone time event such as abotched surgery or acar accident butthe provision ofservices for as long as the area remains part of the city. The casebefore this Court was filed inFebruary 13, 2012 (1 CR7) (3 CR 1085) (1 RR 67-68) and it is the actions or lack ofactions at thattime thatconstitutes thebasis for 

### this lawsuit. Itis a snapshop ofArea 6A-1 at that time. This is not arelitigation ofHallI as put forth by the City. 

### Resjudicata is not abar when asequence ofevents occurs across time, 

### space, origin, or motivation. Barr, 837 S.W.2d at 631. New facts confer new 

### rights and create anew cause ofaction. Marino v. State Farm Fire &Casualty Ins. Co., 787 S.W.2d 949 (Tex. 1990). Ajudgment in one suit will not operate as 

### resjudicata to asubsequent suit on the same question between the same parties "where, in the interval, the facts have changed, or new facts have occurred which 

### may alterthe legal rights or relations ofthe parties." Id. at 949-950. See City of Lubbock v. Stubbs, 327 S.W.2d 411, 414 (Tex. 1959). "Thejudgment is res 

### adjudicata only ofpresent and not offuture conditions." Cowling v. Colligan, 312S.W.2d947(Tex. 1958). 

### InHall I, this Court's opinion stated that the City had "complied with the 

### service plan as written." The Opinion then quotes the City's policy ofextending municipal services with "...developer or property owner participation." That 

### ruling was based on the affidavits ofKevin Russell, Director ofDevelopment

10Services, who said that it is city policy to require developers or property ownersto 

### pay for wastewater line extensions, the affidavit ofMichael Donoho, Bryan Fire Chief, who saidit is city policy that"property owners and developers are 

### responsible for installation offire hydrants," and the affidavit ofBryan Police ChiefMichael Strope who said that the City could provide police protection and 

### services. (1 CR 52) ChiefStrope never addressed the question of" regular and routine police patrols" as required by the service plan. Assuming the City'spolicy in2004 was thatthe developers and property


### owners pay for capital improvements, evidence obtained from Discovery shows that the City's policy has changed. (3 CR 1134-1256). Area 6A-1 is a fully 

### developed mix ofresidential and businesses. The projects listed are only a small 

### sample of the Capital Improvement Projects (CIPs) where sewer (CIP numbers starting with 411) and/or water with fire hydrants (CIP numbers starting with 611) have been installed by the City and paid for with bond funds orother monies controlled by the City ofBryan. (Appendix D, E). It is a "...well-accepted rule thatresjudicata is not a defense in a subsequent action ifthere has been a change in thematerial facts, the applicable statutory law, or the decisional law between the firstjudgment and the second suit. Therationale

11

### underlying this rule is that nojudgmentcan affect subsequently arising rights and duties." Marino, 787 S.W.2d 9 at 950. "Estoppel byjudgment extends only to 

### facts in issue as they existed at the time thejudgment was rendered, and does not 

### preventare-examination ofthe same question between the same parties, where, in the interval, thefacts have changed, or newfacts have occurred 

### which may alter the legal rights or relations ofthe parties." (emphasis added). 

## Cityof Lubbock, 327 S.W.2dat414. SeeHudspeth v. Hudspeth, 673 SW2d252 (Tex. App.—San Antonio 1984). 

### Resjudicata will operate as abar only to matters actually raised orthat could have been raised in the previous litigation. Powell v. Powell, 703 S.W.2d 

## 464 (Tex. App. 1985). SeeAbbottLaboratories v. Gravis, 470 S.W.2d 639 (Tex. 1971). As to matters which arise subsequently, the priorjudgmentwill notbe res 

## judicata. Fort Worth Stockyards Co. v. Brown, 161 S.W.2d 549 (Tex. App.-Fort Worth 1977). SeeFranklin v. Rainey, 556 S.W.2d 583 (Tex. App.—Dallas 1977). The issues raised in this suit are based on significant changes of material facts between the first suit in 2004 and the filing of this suit in 2012. The changes 

### center around the City's policy regarding sewer and fire hydrant construction. 

## Resjudicata does not apply in dealing with acontinuing contractwhenthe current suit "arises out ofaseparate breach." RollingLands v. NorthwestAirport,

12

### 111 SW 3d 193, 194 (Tex. App.—Texarkana 2003). The service plan is not a document to be followed for one day but imposes duties for the entire time the 

### arearemains apart ofthe City. It is classified as a"continuous contract." City of 

### Corpus Christi v. Taylor, 126 SW 3d 725 (Tex. App.—Corpus Christi 2004). See ClearLake City WaterAuth. v. ClearLake Util, 549 SW 2d 390 (Tex. 1977). It 

### can only be terminated by the City ofBryan and only then by disannexing the area. Until such time, the obligations imposed by the service plan remain in effect. If 

### the City fails to performthose obligations, citizens can petition for disannexation. This Court's ruling in 2004 does not exempt the City from fulfilling those obligations in subsequent years. 

### Resjudicata (claimpreclusion) is not abarto this disannexation suit. The trial court erred in granting summaryjudgment for the City based on resjudicata.
Point 2: The trial court erred in granting the City's Motion for Summary 

### Judgment as supplemented based on collateral estoppel. 

### The City raises the defense of collateral estoppel again citing this Court's 

### ruling inHallI. (3 CR58). A party seeking to assert the bar ofcollateral estoppel must establish that (1) the facts sought to be litigated in the second action were 

## fully and fairly litigated in the first action, (2) those facts were essential to the

13judgment inthe first action, and (3) the parties were cast as adversaries inthe first action. Sysco FoodServices, Inc. v. Trapnell, 890 SW2d 801 (Tex. 1994). See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 818 (Tex. 1984). Under state law, collateral estoppel onlyprecludes the relitigation ofidentical issues of fact or law which were actually litigated and essential to the prior judgment. Eagle Properties, Ltd. v. Scharbauer, 807 SW 2d722 (Tex. 1990). The determining issue before this court in 2004 was the City's claim that it complied with the service planbecause it followed City policy to have developers orproperty owners payfor services. That policy has changed. For collateral estoppel to barrelitigation ofan issue, that issue must have been "necessarily determined" in the priorlitigation. Id. The capital improvement policy no longer requires only developers orproperty owners to pay for wastewater line extensions and to be responsible for the installation offire 

### hydrants. Discovery evidence clearly shows areas similar toArea 6A-1 that have
sewer andfire hydrants installed and paidfor with bondfunds or other City controlled monies. Area 6A-1 is being treated differently from similar areas ofthe City. This conflicts with the service plan requirement that, "Under this plan, the 

### City ofBryan will provide the newly annexed areas with the same type, kind and

14quality ofservices currently enjoyed by the citizens ofBryan who reside inareas with similar physical and development characteristics." In order to prevail under collateral estoppel, the case must have been "fairly and fully litigated." This isnot aretrial ofthe facts of2004 but atrial ofthe facts in 2012. Collateral estoppel cannot be applied to a case when there is a change of material facts. Because the service plan is a continuous contract, each failure confers new rights. The same arguments and cases cited above in resjudicata establishing new facts conferring new rights and creating anew cause ofaction are incorporated here by reference. Collateral estoppel (issue preclusion) is not abar to this disannexation suit. The trial court erred in granting summaryjudgment for the City based oncollateral estoppel.
Point 3: The trial court erred in granting the City's Motion for Summary Judgment as supplemented based on a statute oflimitations. The City raised a statute oflimitations defense citing TEX. LOC. GOV'T 

### CODE §43.901. (3 CR 59). The wording ofthis statute, although not exactly the model ofclarity, makes it inappropriate to apply tothis orany disannexation suit. 

### By reading the bill analysis itbecomes very clear that itonly applies to

15

### challenging an ordinance. Challenges to an ordinance can only be done bya 

### municipality or an individual when the error is ab initio. (3 CR 1602-1603). 

### The City of Bryan made no such error. Acopy of§43.901 and the bill analysis is attached.l (Appendix F, G). An excellent explanation ofab initio errors can be found inthe Court ofAppeals ruling inAlexander Oil v. City ofSeguin, 823 S.W.2d 312 (Tex. App.—San Antonio 1989). 

### This explains why the only two cases offered to the court—City of Murphy 

### v. City of Parker, 932 S.W.2d 479 (Tex. 1995) and City ofCelina v. City of Pilot Point, 2009 Tex. App. LEXIS 6932, *11, 2009 WL 2750978 (Tex. App. Fort 

### Worth Aug. 31, 2009, pet. refd)—deal with one municipality annexing into another municipality's ETJ. An ab initio error. Exactly the purpose of§43.901. Adisannexation suit brought under § 43.141 is not the same as achallenge tothe actual annexation ordinance. It is very misleading to cite §43.901 as a limitation
statute in a disannexation suit. The statute oflimitations forcontracts is four years. SeeTex. Civ. Prac. & 

### Rem. Code ANN. § 16.004 (Vernon 2002). However, ina contract that has continuing obligations, the following rule applies: 1Tex. H.B. 1264, 77th Leg., R.S. (2001) through Legislative Reference Library of Texas (http://www.lrl.state.tx.us/).

16Limitations begins to run on a continuing contract at the earlier of the following: (1) whenthe work [under the contract] is complete; (2) when the contract is terminated in accordance with its terms; or (3) when the contract is anticipatorily repudiated by oneparty andthis repudiation is adopted by the other party. City ofCorpus Christi, 126 SW 3d at 725. Because the obligations imposed by the service plan are still in effectand the service plan contract has notbeen terminated orrepudiated, no statute of limitations applies. Where a claim for work, labor, or materials performed or furnished is the outgrowth of an entire contract for continuous work, labor or materials (until thework project has been completed), theclaim will be treated and considered as an entire demand and limitations will not commence to run until the contract has been finished. Godde v. Wood, 509 SW 2d 441 (Tex. App.—Corpus Christi 1974). Also, there does not appear to be any statute of limitations on filing a disannexation suit. In one case, the area was annexed in 1971 and the disannexation suit was filed in 2013. City of Dallas v. D.R. Horton, No. 05-14- 01414-CV (Tex. App.—Dallas, July 10, 2015). Pet. filed. The statute oflimitations is not a bar to this disannexation suit. The trial court erred ingranting summaryjudgment for the City based on any statute of
limitations.

17Point 4: The trial court erred in denying appellant's Motion for Summary Judgment. Code Construction Act The Texas Government Code sections were written to assist courts in determining legislative intent. Plaintiffasks this Court to take specific notice of §312.006(a), §311.011(a), §311.016(1-3), §311.023(1-7), and §312.005. (3 CR 1308).Tex. Gov't Code §312.006. LIBERAL CONSTRUCTION, (a) TheRevised Statutes are the law ofthis state and shall be liberally construed to achieve their purpose and to promote justice. Tex. Gov't Code §311.011. COMMON AND TECHNICAL USAGE OF WORDS, (a) Words andphrases shall be read in contextand construed according to the rules ofgrammar and common usage. Tex. Gov't Code §311.016. "MAY," "SHALL," "MUST," ETC.. The following constructions apply unless the context in which the word orphrase appears necessarily requires adifferent construction orunless a different construction is expressly provided by statute: (1) "May" creates discretionary authority or grants permission or a power. (2) "Shall" imposes a duty. (3) "Must" creates orrecognizes a condition precedent Tex. Gov't Code §311.023. STATUTE CONSTRUCTION AIDS. In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted;

18(3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences ofa particular construction; (6) administrative constructionofthe statute; and (7) title (caption), preamble, and emergency provision Tex. Gov't Code §312.005. LEGISLATIVE INTENT. In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy. In examining the history of the annexation statutes, there is virtually no "old law" because prior to 1912, onlythe Texas Legislature had the legal authority to expand a city's boundaries through annexation. With the passage of the Constitution Amendment Article XI section 5 creating the Home Rule Amendment, cities obtained to power of annexationwith few restrictions. Essentially, between 1912 untilthepassage of the 1963 Municipal Annexation Act,there was still no "old law". There was, however, a great deal of"the evil" as cities annexed enormous amounts ofland with little or no regard to providing municipal services. "The remedy" came in 1963 with thepassage of the Municipal Annexation Act. The Act required that anannexing municipality provide certain services to the residents ofthe annexed area within three years or face the possibility ofhaving to disannex the area. The legislative intent that

19services beprovided to newly annexed areas is still in effect today under TEX. LOC. GOV'T CODE §43.056 and TEX. LOC. GOV'T CODE §43.141. Legislative History ofTEX. Loc. Gov'tCODES §43.056 and §43.141 In 1912 a constitutional amendment created home rule municipalities.2 This amendment allowed citiesto annex without legislative approval.3 In 1963, the 58th Texas Legislature enacted theMunicipal Annexation Act(hereinafter referred to as "Act").4 The Act regulated numerous aspects ofmunicipal annexation including therequirement to furnish services. The Act also allowed areas to be disannexed when those services were not timely provided. In 1981 the 67th Legislature amended the Actby passing House Bill ("HB" hereinafter) 1952.5 ( Appendix H). This amendment added the requirement that cities must write a service plan. The legislative intent of the service plan is to force

2Tex. Const, art. XI, §5. 3Texas House ofRepresentatives, House Committee on Land and Resource Management, Interim Report, 80th Leg., R.S. (May 5, 2008), p. 86 through Legislative Reference Library ofTexas (http://www.lrl.state.tx.us/). 4Municipal Annexation Act, Vernon 970a, 1963. Certification attached. 5Tex. H.B. 1952, 67th Leg., R.S. (1981). Certification attached. 6

House Study Group, Bill Analysis, Tex. H.B. 1952,67th Leg., R.S. (1981) through Legislative Reference Library ofTexas (http://www.lrl.state.tx.us/).

20

### cities to list the required services and then provide those services.6 ( Appendix I). The Intergovernmental Affairs Committee Bill Analysis for HB 1952 states that "'...failure to provide...governmental and proprietary services to anannexed territory is grounds for disannexation."7 Clearly, the Legislature intended disannexation to be the remedy when a municipality fails to provide all legislatively required services. In 1987 and 1989, the 70th and 71st legislative sessions respectively, recodified statutes governing annexation including Vernon's Texas Civil Statute 

### 970a.8 (Appendix J). Inthe old civil statute labeled CITIES, TOWNS and VILLAGES, Vernon's Texas Civil Statute 970a contained both the annexation and disannexation requirements. The 70th Legislature first created the Local Government Code Chapter 43 title MUNICIPAL ANNEXATION. The service 

### requirements were then placed in the newly formed TEX. LOC. GOV'T CODE §43.056 titled Provision ofServices to Annexed Area. The disannexation 

### requirements were placed inthe newly formed Tex. Loc. Gov't Code §43.141 titled DisannexationFor Failure To Provide Services. (3 CR 1091) (3 CR 1324- 1327). 

### 7

Intergovernmental Affairs Committee, Bill Analysis, Tex. H.B. 1952, 67th Leg., R.S. (1981) through Legislative Reference Library of Texas (http://www.lrl.state.tx.us/). 8Tex. S.B. 896, 70th Leg., R.S. (1987) through Legislative Reference Library ofTexas (http://www.lrl.state.tx.us/). 21City's Failure To Meet ServicePlan Requirements A. Sanitary Sewer The City ofBryan's service plan states on page 1, "Under this plan, the City 

### ofBryan will provide the newly annexed areas with the same type, kind and 

### quality ofservices currently enjoyed by the citizens ofBryan who reside in areas with similar physical and development characteristics." (Appendix K). Information obtained from a Discovery Request shows many similar areas within 

### the Bryan city limits that enjoy access to sewer lines that were installed by the City and paid for with either bond funds orother City controlled monies. (3 CR 1134- 1256). This occurred both prior to 2004 and after 2004. The service plan, under Capital Improvements states onpage 4, "Within two 

### years after the effective date ofannexation, the City is also obligated to acquire or begin constructing any additional capital improvements thatare necessary to 

### provide the required levels ofservice in the annexed areas. Such acquisition or construction must be substantially completed within four-and-one-halfyears after the annexation...." Basically, similar services for similar areas. Area 6A-1 is a 

### fully developed mixed use area ofresidents and businesses and is similar to

numerous other areas ofthe city.

22The placement of sewer lines throughout the Cityis shown on a map. (3 CR 1265). (Appendix L). Sewer projects are identified with a 411 CIP (Capital Improvement Project) number. (3 CR 1134-1256). (Appendix D). B. Fire Hydrants Besides the general "similar services for similar areas" statement in the service plan, the requirements for fire hydrants ismore specific. Bryan's service plan states on page 2, "Immediately upon annexation the City ofBryan will 

### provide fire suppression comparable to similar areas inthe rest ofthe City." Area 6A-1 does not have fire hydrants (except those at the City owned Coulter Airfield). (3 CR 1590-1592). Information obtained from Discovery shows many similar areas withinthe Bryancity limits thathave access to fire hydrants that
were installed bythe City and paid for with either bond funds or other City controlled monies. This occurred both prior to 2004 and after 2004. The placement offire hydrants throughout the City is shown on amap. (3 CR 1264). (Appendix M). Water line projects with fire hydrants are identified with a 611 CIP (Capital Improvement Project) number. (3 CR 1134-1256). (Appendix E).

23C. Police Patrols Onpage 2 of Bryan's service plan, it states, "Immediately upon annexation, the City ofBryan Police Department will provide regular androutine preventive patrols...." (1 CR 20-25) (3 CR 1293-1298). (Appendix K). In2005 one hundred thirty (130) continuous hours ofvideo recordings on a side road inArea 6A-1 shows only one Bryan police car. (3 CR 1086) (3 CR 1258-1263) (1 RR 14-16). One patrol car every 130 hours is not "regular and routine preventive patrols." A 2-lane side streetdirectly offHighway 21 was chosen because Highway 21 is a four-lane 70 mph highway with a left turn lane. It is impossible to view all vehicles in all lanes as they pass in front of the camera. Appellant made the assumption thatany patrol car onHwy. 21 would also patrol the side streets. Lieutenant Patterson states in his affidavit that, "Highway 21 has a consistent police presence with patrol officers driving different sections of 

### Highway 21 multiple times per day." (3 CR 1585-1587). This statement is controverted by onehundred (100) hours (various days/times) ofpersonal observation by several different individuals (backed byvideo recordings) at 6111 Hwy. 21 E. inArea 6A-1 in October 2015. Only one Bryan police car was 

### observed during that time. (3 CR 1260-1263) (1 RR 14-16). Achart listing all law

24enforcement vehicles observed with the days, times, and observer's name is attached. (Appendix N). Each observer signed an affidavit stating the day and time any law enforcement vehicle (sheriff, DPS, constable, orBryan PD) was observed. (3 CR 1260-1263) (3 CR 1274-1286). When this evidence is added to the 130 continuous hours ofvideo recordings in 2005, it proves a consistent lack of "regularand routine preventive patrols." Amended Pleadings Allowed The City challenges appellant's amended Petition and her Motion for Summary Judgment for raising issues besides police patrols. The City's Motionfor Summary Judgment states, "Essentially, the opinion [Hall III] holds this court 

### has nojurisdiction tohear any ofMs. Hall's claims, save the police services claim. All such claims must be dismissed." (1CR 63). On remand, appellant is not limited tothe single issue ofpolice patrols but can amend her pleadings to include other issues. In Hallv. City of Bryan, No. 10-12-00248-CV (Tex. App.—Waco 

### 2014), at footnote 5, the 10th Court Opinion states "...our holding does not necessarily mean there are no other claims that Hall can pursue in this proceeding by amending her petition." There are numerous instances when a higher court has issued instructions

25that apleading may be amended. "Aplaintiffdeserves 'a reasonable opportunity to amend' pleadings unless the pleadings demonstrate incurable defects ornegate theexistence of jurisdiction." Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 839 (Tex. 2007). Unless the opinion includes limiting language, appellant is "free to amend its pleadings to add newclaims." Simulis, LLC v. Gen. Elec. Capital 

### Corp., 392 SW 3d 735 (Tex. App.—Houston 14th 2011). Emphasis added. "[The] court's opinion and mandate did not prevent appellant from amending its pleadings

on remand to add new causes ofaction not substantially the same as those 

### originally considered on appeal...." Id. This Court's opinion and mandate did not prevent appellant from amending its pleading to add new causes ofaction following remand. Creative Thinking Etc. v. Creative Thinking, 74 SW 3d511 

### (Tex. App.—Corpus Christi 2002). See Reynolds v. Murphy, 266 SW 3d 147 (Tex. App.-Fort Worth 2008). Therefore, the City is in error in stating that Hall is limited, on appeal, to the issue ofpolice patrols. Examples of Other Disannexations Directly onpoint is City ofHeath v. King, 665 S.W.2d 133 (Tex. App.

- Dallas 1983, no writ). (1 CR 10) (3 CR 1088) (1 RR26-27). InHeath the

26

### Appellate Court affirmed that the City ofHeath should disannex the five tracts of land pursuant to TEX. REV. ClV. STAT, article 970a § 10 [older version ofTEX. Loc. GOV'T CODE §43.141] because "the city failed to furnish services to thefive
areas inquestion comparable to services furnished other areas ofthe city with similar characteristics oftopography, patterns of landutilization, andpopulation density...." (3 CR 1088) (1 RR26-27). The Refund ofTaxes statute TEX. Loc. GOV'T CODE §43.148—effective date September 1, 2000—was notavailable in

1983. Because Lago Vista did not provide sewer to the Poe'sproperty within the 4 

### V2 years required by TEX. LOC. GOV'T CODE §43.056 and the service plan, Bobby Poe filed for disannexation under §43.141. Poe v. The City ofLago Vista Cause No. D-l-GN-05-002184, 345th District Travis County (August 2, 2006). Judge Yelenosky ordered the area disannexed and "ordered the return oftaxes paid by 

### the plaintiffs." 9 This case was not appealed. (3 CR 1089) (3 CR 1303-1307) (1 RR 27-29). In 2002 afterreceiving a petition from annexed residents, the SanMarcos 

### City Council ordered 330 homes disannexed because the city failed to provide full

9

Certified OpinionPoe v. City ofLago Vista Cause No. D-l-GN-05-002184, 345th DistrictTravis County (August 2,2006). (Appendix O).

27municipal services. This information is in thepublic domain and can be found at the Austin-American Statesman's website www.statesman.com. (3 CR 1090) (3 RR 25-27). In 2006 the City ofGreenville disannexed over 1000acres afterresidents submitted apetition requesting disannexation because the City failed to provide the area with the required services. This information is in the public domain and

can be found at the Greenville Herald Banner's website www.heraldbanner.com. (3 CR 1090) (1RR 25-27).

Conclusion Appellant has met all therequirements for disannexation under TEX. LOC. Gov't Code §43.141. A validpetition was filed withthe municipality on 

### September 1, 2009. (3 CR 1096-1132). More than 60 days have passed since the City received the petition. The Bryan City Council, by avote of5-2, denied the request on October 27, 2009. (3 CR 1085). Appellant is one ofthe signers ofthe 

### petition (3 CR 1085) (3 CR 1111). The Bryan City Council adopted Ordinance NO. 1175 on July 27, 1999 which annexed over 6000 acres including Area6A-1. 

### (3 CR 1085). Ithas been more than 4 V2 years from the date ofthe annexation, and

28the City has failed to provide, in good faith or under its service plan, full municipal services to Area 6A-1. On February 13, 2012, appellant filed for disannexation pursuant to §43.141 (1 CR 7) ( CR 1085) (1 RR 67-68). This lawsuit is a snapshot ofArea 6A-1 on February 13, 2013. As ofthe filing ofthis lawsuit, the City ofBryan has failed to perform its obligations in accordance withthe service plan or failed to perform in good faith. The businesses and residents ofArea 6A-1 do not have, as required by the service plan, the same type, kind and quality ofservices currently enjoyed by the citizens ofBryan who reside in areas with similar physical and development characteristics. The businesses and residents ofArea 6A-1 do not have sewer service as do similar areas as proven by the Discovery information and the map showing sanitary sewer lines throughout thecity. (3 CR 1134-1256) (3 CR 1265) (Appendix D, L). The businesses and residents ofArea 6A-1 do nothave fire suppression with fire hydrants as do similar areas as proven bythe Discovery information and the map showing fire hydrants throughout the city (3 CR 1134- 1256) (3 CR 1265) (Appendix E, M). The businesses andresidents ofArea 6A-1 do not haveregular and routinepreventive police patrols as provenby the 130 continuous hours ofvideo in 2005 and the 100 hours ofobservation (and video) in

292015. (3 CR 1084-1086)(3 CR 1258) (1 RR 14-16). On the issue ofproviding services to annexed areas, the City has blatantly disregarded its own service plan, the letter ofthe law, and the spirit ofthe law. Therefore, Area 6A-1 is ripe for disannexation as a matter oflaw. Prayer Wherefore, premises considered, Appellant, Karen Hall, respectfully prays for the following relief: (1) that thejudgment ofthe trial court be reversed and renderjudgment that Area 6A-1 be disannexed from the City ofBryan for a period often (10) years pursuant to TEX. Loc GOV'T CODE §43.141(c), 

### (2) order the landowners be refunded the property taxes and fees collected by the City during theperiod that the area was part of the City pursuant to TEX. Loc. Gov't Code §43.148, (3) The Plaintiffrecover the costs ofthis suit, and such other and further reliefto which Plaintiffmay bejustly entitled. Respectfully submitted,
Karen Hall P.O.Box 13 Kurten, TX 77862 979/589-2920

Karen Hall, pro se

30CERTIFICATE OF SERVICE
I hereby certify that a true and correctcopy ofthe above and foregoing was served by CMRRR onthis &3/U day ofJune 2016 as follows:
Ryan Henry 1380 Pantheon Way, Ste. 110 San Antonio, TX 78232

31 

# fliu^ PJfKaren HallAppendix Appendix A. January 28,2016 Order

32