Supreme Court Of Texas

NO. ________ _______________________________________________________________________ IN THE SUPREME COURT OF TEXAS _______________________________________________________________________ The City of Alton, Petitioner v. The City of Mission, Respondent _______________________________________________________________________ from Hidalgo County ___ S.W.3d ____, 2005 WL 124 4606 (Tex. App.—Corpus Christi 2005) ________________________________________________________________________ PETITION FOR REVIEW ________________________________________________________________________ PHIL STEVEN KOSUB State Bar No. 11692500 302 Corona San Antonio, Texas 78209 Telephone: (210) 828-2358 GARY L. HENRICHSON State Bar No. 09476400 P.O Box 1258 200 E. Cano Edinburg, Texas 78540-1258 Telephone: (956)381-4529 Facsimile: (956)381-4589 LUTHER H. SOULES III State Bar No. 18858000 ROBINSON C. RAMSEY State Bar No. 16523700 LANGLEY & BANACK, INC. Trinity Plaza II, Suite 900 745 E. Mulberry San Antonio, Texas 78212 Telephone: (210) 736-6600 Telecopier: (210) 735-6889 ATTORNEYS FOR PETITIONER IDENTITY OF PARTIES AND COUNSEL Petitioner/Appellant/Defendant: The City of Alton Counsel for Petitioner: At Trial Phil Steven Kosub 302 Corona San Antonio, Texas 78209 Bruce K. Spindler Trinity Plaza II, Suite 900 745 E. Mulberry San Antonio, Texas 78212 Gary L. Henrichson LAW OFFICE OF GARY L. HENRICHSON PO Box 1258 200 E. Cano Edinburg, Texas 78540-1258 On Appeal Phil Steven Kosub 302 Corona San Antonio, Texas 78209 Gary L. Henrichson LAW OFFICE OF GARY L. HENRICHSON PO Box 1258 200 E. Cano Edinburg, Texas 78540-1258 Luther H. Soules III Robinson C. Ramsey LANGLEY & BANACK, INC. Trinity Plaza II, Suite 900 745 E. Mulberry San Antonio, Texas 78212 i Respondent/Appellee/Intervenor: The City of Mission Counsel for Respondent/Appellee/Intervenor: At Trial Robert L. Galligan JONES, GALLIGAN, KEY & LOZANO Tower Center Tower, Suite 300 2300 West Pike Boulevard (78596) Post Office Drawer 1247 Weslaco, Texas 78599-1247 On Appeal Robert L. Galligan Rudy Salinas Jr. JONES, GALLIGAN, KEY & LOZANO Tower Center Tower, Suite 300 2300 West Pike Boulevard (78596) Post Office Drawer 1247 Weslaco, Texas 78599-1247 ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, iv, v INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi, vii STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix G ROUP O NE ISSUES: E XTRATERRITORIAL J URISDICTION . . . . . . . . . . . . . . . . . . . ix 1 .1 Is a city’s agreement to forever relinquish future statutory increases of its extraterritorial jurisdiction (“ETJ”) void as an impermissible surrender or restriction of the city’s free exercise of its governmental or police powers or functions? Is such an agreement by a general-law city void because this type of city derives its powers solely from statutes, and no statute – including Texas Local Government Code § 42.023, which provides that a city may agree to a reduction of its ETJ – authorizes a city to waive future statutory increases of its ETJ? 1.2 ISSUE T WO: V ALIDATION S TATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Can the Texas Validation Statute, which provides for the catchall retroactive approval of defects in authorized governmental proceedings, legitimize a city’s surrender or restriction of its governmental function of annexation by permanently freezing its ETJ, or is such an action void and incurable as being against public policy and state law? iii G ROUP T HREE ISSUES: A DDITIONAL U NBRIEFED ISSUES ON S UMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISPRUDENTIAL IMPORTANCE . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A city’s governing body cannot contractually bind its future counterparts to surrender or restrict the city’s ability to exercise its governmental functions or powers because this would interfere with the city’s ability to adapt to future circumstances as the public interest may require. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A general-law city’s agreement to impair its ability to annex in the future is void because such a city derives its powers solely from statutes, and no statute – including Texas Local Government Code § 42.023, which provides that a city may agree to a reduction of its ETJ – authorizes a city to waive future statutory increases of its ETJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Texas Validation Statute merely confirms the validity of actions that cities are authorized to perform; it does not legitimize the surrender or restriction of a governmental function in violation of public policy and state law. . . . . . . . . . . . . . . . . . 12 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. B. C. D. E. Summary Judgment Court of Appeals’ Judgment Court of Appeals’ Opinion City of Mission Ordinance No. 1614 Letter dated 24 May 1991 from Mission Mayor to Alton Mayor iv F. G. H. I. J. K. L. M. N. O. P. Q. R. S. City of Alton Ordinance No. 1991–05 City of Alton Ordinance 2001–11 T EX. L OC. G OV’T C ODE § 42.001 T EX. L OC. G OV’T C ODE § 42.023 T EX. L OC. G OV’T C ODE § 42.041 T EX. L OC. G OV’T C ODE § 42.901 T EX. L OC. G OV’T C ODE § 43.051 T EX. L OC. G OV’T C ODE § 51.001 T EX. L OC. G OV’T C ODE § 51.003 T EX. R EV. C IV. S TAT. A NN. art. 974d-39 § 3(b) V.A.C.S. art. 817 (1911) T EX. C ONST. art. I § 19 T EX. C ONST. art. I § 29 T EX. C ONST. art. XI § 4 v INDEX OF AUTHORITIES Cases Banker v. Jefferson County Water Control and Improvement Dist. No. One, 277 S.W.2d 130 (Tex. App.—Beaumont 1955, writ ref’d n.r.e.) . . . . . . . . . . . . 5, 8 Banker v. Jefferson County Water Control and Improvement Dist. No. One, 277 S.W.2d 130 (Tex. App.—Beaumont 1955, writ ref’d n.r.e.) . . . . . . . . . . . . . . 5 Belton v. Head, 137 S.W. 417 (Tex. Civ. App.—Austin 1911, no writ) . . . . . . . . . . . . 6, 7 Bowers v. City of Taylor, 16 S.W.2d 520 (Tex. Comm’n App. 1929) . . . . . . . . . . 5-8, 14 City of Beaumont v. Calder Place Corp., 183 S.W.2d 713 (Tex. 1944) . . . . . . . . . . . 5, 11 City of Brenham v. Brenham Water Co., 4 S.W. 143 (Tex. 1887) . . . . . . . . . . . . . . . . 5-8 City of Corpus Christi v. Taylor, 126 S.W.3d 712 (Tex. App.—Corpus Christi 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 7, 12-14 City of Crosbyton v. Texas-New Mexico Utilities Co., 157 S.W.2d 418 (Tex. App.—Amarillo 1942, writ ref’d, w.o.m.) . . . . . . . . . . . . . . . . . . . . . . . . . 13 City of Farmers Branch v. City of Addison, 694 S.W.2d 94 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571 (Tex. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 City of Lubbock v. Magnolia Petroleum Co., 6 S.W.2d 80 (Tex. Comm’n App. 1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 City of Springfield v. Judith Jones Dietsch Trust, 746 N.E. 2d 1272 (Ill. 4 th Dist. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 City of Westlake Hills v. State ex rel City of Austin, 466 S.W.2d 722 (Tex. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 vi Clear Lake City Water Authority v. Clear Lake Utilities Co., 549 S.W.2d 385 (Tex. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Constitution T EX. C ONST. art. I § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 T EX. C ONST. art. I § 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 T EX. C ONST. art. XI § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Statutes T EX. L OC. G OV’T C ODE § 42.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 T EX. L OC. G OV’T C ODE § 42.023 . . . . . . . . . . . . . . . . . . . . . . . . . . iii, iv, ix, x, 2, 3, 10, 12 T EX. L OC. G OV’T C ODE § 42.041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 T EX. L OC. G OV’T C ODE § 42.901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 T EX. L OC. G OV’T C ODE § 43.051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 T EX. L OC. G OV’T C ODE § 51.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi, 6, 7 T EX. L OC. G OV’T C ODE § 51.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 2, 4, 12, 14 T EX. R EV. C IV. S TAT. A NN. art. 974d-39 § 3(b) . . . . . . . . . . . . . . . . . . . . . . . . ix, 2, 4, 12 V.A.C.S. art. 817 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 vii S TATEMENT OF THE C ASE Nature of the Case A ction for declaratory judgment regarding extent of extraterritorial jurisdiction (“ETJ”) of two cities as a result of mutual ordinances agreeing to restrict each city’s ETJ.1 Hon. Rose Guerra Reyna 206 th Judicial District Court, Hidalgo County, Texas Summary judgment in favor of Respondent/Appellee/ Intervenor City of Mission finding breach of contract and awarding attorney’s fees 2 Defendant/Appellant: City of Alton Intervenor/Appellee: City of Mission Thirteenth, sitting in Corpus Christi/Edinburg, Texas3 Rodriguez, J. (author), joined by Yanez, J. and Garza, J. ___ S.W.3d ___, 2005 WL 1244606 (Tex. App.—Corpus Christi 2005) Affirmed Judgment signed by Trial court Disposition at trial Parties on appeal Appellate district Panel Citation Appellate disposition 1 CR 24–28 (Mission’s Petition in Intervention); 1 CR 39–48 (Alton’s First Amended Petition and Counterclaim). 2 2 CR 467–68 (Summary Judgment). 3 1 Orally argued in Edinburg . viii S TATEMENT OF J URISDICTION This Court has jurisdiction under Texas Government Code sections 22.001(a)(3) (statutory construction) and 22.001(a)(6)(jurisprudential importance). I SSUES P RESENTED G ROUP O NE ISSUES: E XTRATERRITORIAL J URISDICTION 1 .1 Is a city’s agreement to forever relinquish future statutory increases of its extraterritorial jurisdiction (“ETJ”) void as an impermissible surrender or restriction of the city’s free exercise of its governmental or police powers or functions? Is such an agreement by a general-law city void because this type of city derives its powers solely from statutes, and no statute – including Texas Local Government Code § 42.023, which provides that a city may agree to a reduction of its ETJ – authorizes a city to waive future statutory increases of its ETJ? ISSUE T WO: V ALIDATION S TATUTE Can the Texas Validation Statute,4 which provides for the catch-all retroactive approval of defects in authorized governmental proceedings, legitimize a city’s surrender or restriction of its governmental function of annexation by permanently freezing its ETJ, or is such an action void and incurable as being against public policy and state law? 1.2 4 V.A.C.S. art. 974d-39 § 3(b); see also T EX . L O CAL G O V ’T C O D E § 51.003 . ix G ROUP T HREE ISSUES: A DDITIONAL U NBRIEFED ISSUES ON S UMMARY J UDGMENT 3.1 Did the trial court err in granting the City of Mission’s motion for summary judgment? 3.1.1 Was the validity of the 1991 ordinances limited to delegating responsibility for plat approval of subdivisions within overlapping areas of extraterritorial jurisdiction (“ETJ”), rather than permanently freezing ETJ boundaries for annexation purposes? 3.1.2 In the alternative, does a material fact issue exist because the 1991 ordinances are ambiguous as to whether they apply solely to subdivision regulation under Chapter 212 of the Texas Government Code or also to annexation under Chapters 42 and 43? 3.1.3 In the alternative, could either city terminate the agreement at will because the agreement contemplated a continuing performance for an indefinite term? 3.1.4 In the alternative, did the City of Alton have authority under section 51.001 of the Texas Local Government Code to repeal the ordinance for the good government, peace, or order of the municipality and to carry out a power granted by law to the municipality? 3.1.5 Was the trial court’s award of costs and attorney’s fees to the City of Mission inequitable and unjust? x 3.2 Did the trial court err in denying the City of Alton’s motion for summary judgment? 3.2.1 Was the validity of the 1991 ordinances limited to delegating responsibility for plat approval of subdivisions within overlapping areas of extraterritorial jurisdiction (“ETJ”), rather than permanently freezing ETJ boundaries for annexation purposes? 3.2.2 In the alternative, does a materal fact issue exist because the 1991 ordinances are ambiguous as to whether they apply solely to subdivision regulation under Chapter 212 of the Texas Government Code or also to annexation under Chapters 42 and 43? 3.2.3 In the alternative, could either city terminate the agreement at will because the agreement contemplated a continuing performance for an indefinite term? 3.2.4 In the alternative, did the City of Alton have authority under section 51.001 of the Texas Local Government Code to repeal the ordinance for the good government, peace, or order of the municipality and to carry out a power granted by law to the municipality? 3.2.5 Was the trial court’s refusal to award costs and attorney’s fees to the City of Alton, and awarding them instead to the City of Mission, inequitable and unjust? xi S TATEMENT OF F ACTS Although the court of appeals correctly stated the nature of the case, the opinion does not include all of the following background facts relating to the matters that led to this litigation. In 1991, the City of Mission concluded that confusion existed among developers regarding which city – Mission or Alton – had the authority to regulate proposed subdivisions.5 Therefore, Mission prepared and adopted an ordinance to establish proposed extraterritorial jurisdiction (“ETJ”) boundaries 6 and asked Alton to sign an identical version of this ordinance “in an effort to quickly and accurately direct subdividers to the appropriate authority . . .”7 Alton passed this ordinance with the understanding that these ETJ restrictions were limited to subdivision regulation under Chapter 212 of the Texas Local Government Code,8 but learned later that Mission claimed the ordinances also applied to future annexation under Chapter 43.9 As a result, litigation ensued in which Mission and Alton filed competing motions for summary judgment regarding their ETJ dispute.10 On May 1, 2003, the trial court signed a summary judgment granting Mission’s 1 CR 294–95 (Letter dated 24 May 1991 from Mission mayor to Alton mayor and enclosed proposed ordinance); 1 CR 298 (Townsend Depo.). 6 1 CR 294–95 (Letter dated 24 May 1991 from Mission mayor to Alton mayor and enclosed proposed ordinance). 7 1 CR 208 (Zavala Depo.); 1 CR 294–95 (Letter, dated 24 May 1991, from Mission mayor to Alton mayor and enclosed proposed ordinance) 8 1 CR 125 (Alton Ordinance No. 2001–11); 1 CR 250–54 (Sagredo Depo.). 9 1 CR 24–28 (Mission’s Petition in Intervention); 1 CR 159–64 (Salinas Depo.). 10 1 CR 51 (Mission’s Motion for Summary Judgment against Alton); 1 CR 177 (Alton’s Motion for Summary Judgment against Mission). The City of Mission intervened in the suit that the City of McAllen filed. McAllen’s suit was later severed. 1 CR 8 (McAllen’s Original Petition); 1 CR 24–26 (Mission’s Petition in Intervention); 2 CR 473 (Severance Order). 5 requested relief and denying Alton’s motion for summary judgment.11 The trial court also denied Alton’s motion to vacate or modify the judgment.12 Alton filed its notice of appeal on June 2, 2003, and, on May 26, 2005, the court of appeals issued its judgment and opinion affirming the trial court’s judgment. After electing to forego a motion for rehearing in the court of appeals, Alton submitted this petition for review to the Supreme Court of Texas. S TATEMENT OF J URISPRUDENTIAL I MPORTANCE In this case of first impression, the Corpus Christi/Edinburg Court of Appeals has construed Texas Government Code section 42.023, which provides that a city may agree to reductions of its extraterritorial jurisdiction (“ETJ”), in a way that would allow a city to irreversibly relinquish future statutory increases of its ETJ. This opinion has cut an aberrant jurisprudential swath through the otherwise uniform field of this State’s public policy prohibiting municipal governing bodies from binding their future counterparts to agreements that impair the city’s ability to adapt to circumstances for the good of those who reside within and adjacent to its boundaries. In an alternative effort to support its decision, the court of appeals construed article 974d-39 § 3(b)13 (“The Texas Validation Statute”) as a cure-all to authorize cities to give up governmental powers. However, this statute, which provided for a retroactive catch-all validation of authorized actions that cities had taken, was never meant to empower 11 12 2 CR 467–68 (Summary Judgment). 2 CR 501 (Order denying Alton’s motion to vacate/modify/new trial). 13 See also T EX . L O C . G O V ’T C O D E § 51.003 (current Validation Statute). 2 municipalities to impair their governmental functions. The court of appeals’ misconstruction of this statute to legitimize acts that are void as against public policy and the laws of Texas has inflicted a statewide jurisprudential wound which, if left untreated, will bleed the life out of case law holding that cities cannot barter away their legislative functions and cannot effectively pass ordinances in violation of the public policy or laws of this state. Under the court of appeals’ ruling, citizens living in South Texas colonias as well as other areas of this State in need of city services, but outside municipal ETJ, will be deprived of the right to receive these services at the earliest opportunity from the first city that is able to reach them. Furthermore, city residents will be subject to living next to unregulated development in areas bordering municipal boundaries with no way to correct this problem. As the court of appeals recognized, there is “no Texas case on point” regarding these issues relating to annexation and extraterritorial jurisdiction. Therefore, the time is ripe for this Court to resolve these important questions of state law. S UMMARY OF THE A RGUMENT Extraterritorial Jurisdiction. Texas Government Code section 42.023 provides that a city may agree to a reduction of its extraterritorial jurisdiction (“ETJ”); however, it does not authorize a city to forever relinquish future statutory increases of its future ETJ through annexation so as to impair its ability to protect the public interest as future circumstances may dictate. A city must remain in a position to exercise its legislative powers when required for the benefit and protection of the public in response to future circumstances as they arise. 3 Therefore, a city can neither cede nor restrict the exercise of its governmental powers in a manner that would bind the future course of the city by holding citizens hostage to the acts of former governing bodies. The creation of an exception to this general rule for purposes of annexation and ETJ violates the public policy of this State, as pronounced in Texas Government Code section 42.001, “to promote and protect the general health, safety, and welfare of persons residing in and adjacent to” municipalities. If all cities in Texas could agree to permanently freeze their ETJ, this would create areas that could never be annexed because a city can annex only within its ETJ. As a result, citizens living outside the existing ETJ of cities could never receive the protections that section 42.001 was designed to provide. Here, although Mission claims that Alton is precluded from expanding its ETJ to serve citizens in colonias and other areas, Mission is not obligated to extend its ETJ to these areas. Therefore, if Mission decides not to provide these services or finds that it is unable to do so as quickly as Alton, these citizens will suffer by having to wait longer for these services, and the stage will be set for this same scenario to play out across the State. Furhermore, city residents will be at risk of living next to unregulated developments on the city’s borders. Validation Statute. As an alternative means to justify its opinion, the court of appeals construed article 974d-39 § 3(b)14 (“The Texas Validation Statute”) as a cure-all to 14 See also T EX . L O C . G O V ’T C O D E § 51.003 (current Validation Statute). 4 authorize cities to give up governmental powers. The purpose of this statute is to correct irregularities in authorized acts. It was not intended as a legislative stamp of approval on cities’ agreements to shirk, rather than exercise, their governmental powers or engage in any other acts that are otherwise void as against public policy or the laws of this State. A RGUMENT The Future of ETJ. A city cannot validly contract to limit the free exercise of its governmental or police powers because any attempt to do so is contrary to public policy, and, therefore, illegal and void. See, e.g., Clear Lake City Water Authority v. Clear Lake Utilities Co., 549 S.W.2d 385, 391–92 (Tex. 1977); Banker v. Jefferson County Water Control and Improvement Dist. No. One, 277 S.W.2d 130, 134 (Tex. App.—Beaumont 1955, writ ref’d n.r.e.). As a result, any contract in derogation of a governmental function is unenforceable. See, e.g., City of Beaumont v. Calder Place Corp., 183 S.W.2d 713, 715–16 (Tex. 1944); Bowers v. City of Taylor, 16 S.W.2d 520, 521–22 (Tex. Comm’n App. 1929). A city’s power to determine its boundaries by annexing territory is a legislative function. See, e.g., City of Westlake Hills v. State ex rel City of Austin, 466 S.W.2d 722, 728 (Tex. 1971); City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571, 575 (Tex. 1964). Therefore, Alton could not legitimately contract away this function. See Bowers, 16 S.W.2d at 521 (“[A] city cannot by contract or otherwise surrender its governmental or legislative functions . . .”); City of Brenham v. Brenham Water Co., 4 S.W. 143, 152 (Tex. 1887)(cities cannot contract away “any power, legislative in character . . .”). 5 Although a governing body may legitimately make decisions based upon known circumstances, it cannot be allowed to weaken a city by giving up or impairing governmental functions that the municipality may need to exercise for the benefit of the public as future circumstances may dictate. See Brenham, 4 S.W. at 149 (a city may not contract “so as to render it unable in the future so to control any municipal matter, over which it is given power to legislate, as may be deemed best”); see also Bowers, 16 S.W.2d at 521 (“Every city must keep itself in position to be able at any time to exercise [its] legislative powers . . .”). Allowing present governing bodies to undermine future governmental functions would also deny future voters the right to elect representatives to reflect the will of the public as it exists at that time: [T]he very purpose for which short terms of office and frequent elections are required is to leave the control of municipal affairs as near as may be in the hands of the people. . . The reasons but emphasize the necessity for denying to a city council, or other governing body, the power, by contract or otherwise, to disable or hinder from time to time the full and free exercise of any power, legislative in its character . . . Brenham, 4 S.W. at 152. See also T EX. C ONST. art. I § 19 (prohibition against disenfranchisement); T EX. C ONST. art. I § 29 (laws contrary to the Bill of Rights are void). If a contract is invalid because it exceeds a city’s powers, the city’s governing body has the right to declare it null and to refuse to comply with it. See Brenham, 4 S.W. at 149; see also T EX. L OC. G OV’T C ODE § 51.001 (a city may repeal any ordinance if it is necessary or proper to carry out a city’s powers). The court of appeals cites a quote from Belton v. Head, 137 S.W. 417 (Tex. Civ. 6 App.—Austin 1911, no writ), that “[a]ll ordinances . . . are subject to repeal, except such as are contractual in their character . . .” Id. at 418. However, that language actually appears in the context of a ruling upholding, not impairing, a city’s power to repeal an ordinance. Furthermore, Belton does not discuss the statutory authority for cities to repeal ordinances. See V.A.C.S. art. 817 (1911)(now T EX. L OC. G OV’T C ODE § 51.001). Therefore, this case does not constitute good authority for limiting a city’s power to repeal a contractual ordinance. Although the court of appeals incorrectly determined that Alton breached its contract with Mission by passing the 2001 ordinance that repealed the 1991 ordinance, nevertheless, that ruling necessarily acknowledged Alton’s power to repeal the 1991 ordinance: If the 2001 ordinance had been void ab initio, then it would have had no effect, and so could not have caused a breach of an agreement. The only ordinance that was void ab initio was the 1991 ordinance, which impermissibly abdicated future municipal power. See Brenham, 4 S.W. at 149. An improper abdication of governmental authority can result from either an unauthorized delegation of powers to another person or entity or from a government’s agreeing to give up or limit its powers. See, e.g. Bowers, 16 S.W.2d at 522 (city’s contract not to open or extend streets was void as an improper abnegation of legislative powers); City of Corpus Christi v. Taylor, 126 S.W.3d 712, 719 (Tex. App.—Corpus Christi 2004, no pet.)(contract restricting city’s freedom to choose when to condemn was void as an improper 7 derogation of governmental powers); City of Farmers Branch v. City of Addison, 694 S.W.2d 94, 95 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)(city’s contractually granting another entity power to operate sewer was in derogation of city’s governmental functions). Whatever form a city’s abnegation of its authority may take, any such action constitutes an impermissible derogation of a city’s governmental functions. See Clear Lake, 549 S.W.2d at 391; Banker, 277 S.W.2d at 134; see also Bowers, 16 S.W.2d at 522 (cities’ legislative powers “cannot be bartered away [so] as to disable them from the performance of their public functions.”). The court of appeals’ creation of an exception to this general rule for purposes of annexation and ETJ violates the public policy of this State “to promote and protect the general health, safety, and welfare persons residing in and adjacent to” municipalities. T EX. L OC. G OV’T C ODE § 42.001. A city cannot fulfill these functions if it abandons or impairs its ability to develop its ETJ. Brenham, 4 S.W. 149 (a city having been given power, “it must be understood that it was intended, not only that it might use it, but that it should use it, if deemed necessary, for the public welfare . . .”). If all cities in Texas could agree to permanently freeze their ETJ, this would create areas that could never be annexed because a city can annex only within its ETJ. See T EX. L OC. G OV’T C ODE § 43.051. Such actions would permanently isolate citizens who, because they live outside the existing ETJ of cities, could never receive the protections of section 42.001, but instead would find themselves stranded in a no-man’s-land beyond the reach of 8 any city’s ETJ. At best, these persons would lose the chance to receive these services at the earliest opportunity from the first city that is able to provide them. Here, for example, although the court of appeals ruled that Alton cannot expand its ETJ to serve citizens in certain areas, the court also held that Alton’s giving up ETJ did not confer ETJ upon Mission, which will have to follow the required statutory channels to extend its boundaries and ETJ. Because the court of appeals rejected Mission’s assertion that Chapter 212, which relates solely to subdivision regulation, could expand Mission’s ETJ from two to five miles for annexation purposes, Mission has a lot longer way to go than it thought before it will be able to provide the services that it argues are so important to the people living in colonias and other subdivisions.15 Therefore, if Mission, whether by choice or necessity, does not provide these services as quickly as Alton could, these citizens will be deprived of the valuable right to receive these services at the earliest opportunity, if at all. Furthermore, a permanent ETJ freeze would expose future city residents to the unregulated activities of neighbors immediately across municipal boundaries with no buffering ETJ and no hope of future relief. These are important questions of state law, which this Court has not resolved but should resolve so that – unlike the Thirteenth of Appeals, which could find “no Texas case on point”– intermediate appellate courts in the future will not make this same error of law. Reducing v. Increasing ETJ. Unlike home-rule cities, such as Mission, which 15 1 CR 57–58 (Mission’s Motion for Summary Judgment against Alton). 9 possess all powers that statutes or the Constitution do not expressly deny, general-law cities, like Alton,16 can exercise only those powers authorized by statute. See Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). In recognition of the fact that statutory authority is a prerequisite to the validity of any action by Alton, the court of appeals interpreted Texas Local Government Code section 42.023 to authorize cities to abdicate their powers to annex and establish ETJ in the future. However, that statute’s language regarding the procedure for reducing a city’s ETJ does not equate to an authorization for an existing governing body to barter away a subsequent city council’s governmental power by waiving future statutory increases of ETJ. T EX. L OC. G OV’T C ODE § 42.023.17 The court of appeals’ statement that “the legislature provided no limiting language such that the agreements necessarily require the reduced ETJ to be existing ETJ” ignores the obvious: any such language would have been redundant because that which does not exist cannot be reduced. Agreeing to reduce the area of ETJ is not the same as agreeing to waive future statutory increases of ETJ – just as agreeing to reduce the amount of a past-due debt is not the same as agreeing never to collect on future debts that may arise. Nevertheless, the court 2 CR 196, 256 (Sagredo Depo). Although Texas Local Government Code sections 42.041 and 42.901, which provide for a city’s agreement to release its ETJ to allow another city to incorporate and to apportion overlapping ETJ, do not apply here, they too encompass only existing ETJ, not future ETJ. 17 16 10 of appeals endorsed Alton’s bartering away of a governmental function based upon the rationale that a city’s agreeing to give up its future ETJ does not relinquish its power any more than its agreeing to reduce its present ETJ. This analysis ignores the gaping difference between a governing body’s making an informed decision in the present based upon known circumstances versus that same governing body’s making an uninformed decision regarding unknown circumstances in the future. This difference is one of the reasons that Texas case law prohibits a city’s governing body from binding its successors to agreements that impair a city’s ability to exercise its powers as the interests of its future citizens may require. See, e.g., Beaumont, 183 S.W.2d at 715. After acknowledging that it could find “no Texas case on point,” the court of appeals reached outside the state in search of a decision that could support its opinion. However, even the out-of-state case it cited is not on point. In City of Springfield v. Judith Jones Dietsch Trust, 746 N.E. 2d 1272 (Ill. 4 th Dist. 2001), an Illinois intermediate appellate court upheld a preannexation agreement between a city and a private property owner approving a preliminary subdivision plan for land that was not contiguous to the city’s boundaries. Id. at 1273. This case did not involve an agreement to impair a city’s ability to annex in the future by permanently freezing its ETJ. Id. Instead, it analyzed whether one city’s preannexation agreement trumped another city’s existing statutory planning jurisdiction. See id. at 1273–75. Without any prior Texas case law to guide it, the court of appeals took a wrong turn 11 by creating an ETJ exception to the general rule against cities’ impairing their governmental functions. Intermediate appellate courts need definitive directions from the highest court of this State so that they will not follow the Thirteenth Court of Appeals down this same errant path. Invalid Use of Validation Statute. In the alternative, the court of appeals asserts that even if section 42.023 does not authorize cities to cede or impair their governmental functions of annexing; thereby statutorily increasing ETJ, nevertheless, article 974d-39 § 3(b) 18 (“The Texas Validation Statute”) cured any problem by providing a catch-all retroactive legitimation of the city’s action. That statute provided: [a]ll governmental proceedings performed by governing bodies of [incorporated or attempted to be incorporated] cities and towns and their officers since their incorporation or attempted incorporation are validated as of the date of such proceedings, including extensions or attempted extensions of extraterritorial jurisdiction undertaken at the requires of owners of territory.19 T EX. R EV. S TAT. A NN. art. 974d-39 § 3(b).20 However, the Validation Statute was never meant to furnish a means for the Legislature to rubber-stamp its approval of cities’ agreeing to forfeit or restrict, rather than exercise, their governmental powers or to condone their engaging in any other acts that are otherwise void as against public policy or the laws of the State. See Taylor, 126 S.W.3d at 724 (to validate an act that is “against public policy and void is not what the legislature intended by the enactment of the validation statutes”). This 19 N O W T EX . L O CAL G O V ’T C O D E § 51.003. See Ct. App. Op. at 10. 20 See also T EX . L O C . G O V ’T C O D E §51.003 (current Validation Statute). 18 12 statute is merely a housekeeping measure designed to give effect to authorized ordinances that cities passed in good faith but that suffer from some procedural or substantive defect. See id.; cf. also City of Lubbock v. Magnolia Petroleum Co., 6 S.W.2d 80, 83 (Tex. Comm’n App. 1928)(only effect of validation act regarding city charters was to place cities in same position they would have been if their proceedings “had been in all things regular and valid”). A validation statute cannot legitimize municipal actions that are inconsistent with the general laws of the State. See Magnolia, 6 S.W.2d at 83; Taylor, 126 S.W. at 724. Any such provisions remain just as ineffective as they would have been without a validation statute. Id. Even the court of appeals’ opinion acknowledged this principle by stating that it would not conclude that the Legislature would validate an ordinance attempting to expand a city’s ETJ by receiving another city’s future ETJ contrary to the express statutory limitations on a city’s ETJ. In addition, validation statutes cannot cure constitutional defects. See, e.g., Taylor, 126 S.W.3d at 724. Depriving a city of its legitimate authority would create just such a defect. See City of Crosbyton v. Texas-New Mexico Utilities Co., 157 S.W.2d 418, 420 (Tex. App.—Amarillo 1942, writ ref’d, w.o.m.) (any contract that has the effect of “tying the city’s hands so that it is impotent to change its policy in respect thereto is unconstitutional and void.”); see also T EX. C ONST. art. XI § 4 (chartering of general-law cities with populations of 5,000 or less). 13 Because Mission and Alton’s ordinances purported to contract to impair their governmental functions, these ordinances are void and unenforceable. See, e.g., Bowers, 16 S.W.2d at 521–22 (an ordinance which has the effect of abridging the legislative powers of a city is void). Therefore, the Validation Statute could not cure this void act. See Lubbock, 6 S.W.2d at 83; Taylor, 126 S.W.2d at 724; see also T EX. L OC. G OV’T C ODE § 51.003(b)(1) (presumption of validity of municipal act does not apply to act or proceeding that was void at the time it occurred). The ramifications of the court of appeals’ interpretation of the Validation Statute go far beyond ETJ. If this statute can serve as a means for one wrongful municipal act to slip past the prohibitions of state law, then it can be used to launder any illegitimate ordinance. The cities and courts of Texas need to know that this State’s highest court will not tolerate such an inimical misuse of this legislation. P RAYER For these reasons, the City of Alton asks this Court to grant this petition for review. Respectfully submitted, ______________________________ LUTHER H. SOULES III State Bar No. 18858000 ROBINSON C. RAMSEY State Bar No. 16523700 LANGLEY & BANACK, INC. Trinity Plaza II, Suite 900 745 E. Mulberry San Antonio, Texas 78212 14 Telephone: (210) 736-6600 Facsimile: (210) 735-6889 PHIL STEVEN KOSUB State Bar No. 11692500 302 Corona San Antonio, Texas 78209 Telephone: (210) 708-7484 GARY L. HENRICHSON State Bar No. 09476400 Law Office of Gary L. Henrichson P.O. Box 1258 200 E. Cano Edinburg, Texas 78540-1258 Telephone: (956) 381-4529 Facsimile: (956) 381-4589 ATTORNEYS FOR PETITIONER THE CITY OF ALTON C ERTIFICATE OF S ERVICE A true and correct copy of the foregoing Petition for Review was deposited in an official depository of the United States Postal Service, in a postage-paid wrapper, by certified mail, return receipt requested, properly addressed to: Robert L. Galligan Rudy Salinas, Jr. J ONES, G ALLIGAN, K EY & L OZANO, LLP Tower Center Tower, Suite 300 2300 West Pike Boulevard (78596) Post Office Drawer 1247 Weslaco, Texas 78599-1247 Attorneys for Respondent the City of Mission on _________________, 2005. _________________________________ LUTHER H. SOULES, III ROBINSON C. RAMSEY PHIL STEVEN KOSUB GARY L. HENRICHSON 15 A PPENDIX