reyes-urbina-v-designer-homes-co-inc-onesimo-martinez-javier ( 2011 )

NUMBER 13-09-00422-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CITY OF SAN JUAN, Appellant,
v.
CITY OF PHARR, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Benavides1
Memorandum Opinion by Justice Rodriguez
1
The Honorable Linda Reyna Yañez, former Justice of this Court, did not participate in this
opinion because her term of office expired on December 31, 2010; therefore, this case, which was
argued before the panel on October 28, 2010, will be decided by the two remaining justices on the panel.
See TEX. R. APP. P. 41.1(b) ("After argument, if for any reason a member of the panel cannot participate
in deciding a case, the case may be decided by the two remaining justices.").
In this extraterritorial jurisdiction (ETJ) case,2 appellant City of San Juan sued
appellee City of Pharr for breach of contract and sought a declaratory judgment
regarding the validity of certain annexation ordinances and the effect of those
ordinances on San Juan's ETJ. Pharr counterclaimed for declaratory judgments
regarding its own ETJ. Both parties filed motions for summary judgment on their
claims, and the trial court granted the motion filed by Pharr and denied the motion filed
by San Juan. By three issues, San Juan argues that the trial court erred in: (1)
denying San Juan's motion for summary judgment on the validity and effect of certain
annexation ordinances passed by San Juan in the 1990s because Pharr did not timely
challenge the ordinances and therefore consented to their validity; and granting
Pharr's motion for summary judgment on the validity and effect of certain annexation
ordinances passed by Pharr in the 2000s because (2) San Juan's 1990s annexation
ordinances, to which Pharr allegedly consented, also extended San Juan's ETJ, thus
precluding the later annexations by Pharr, and (3) alternatively, a 1983 agreement
between San Juan and Pharr prohibited the expansion of Pharr's city limits and ETJ
beyond a certain boundary outlined in the agreement. We affirm, in part, and reverse
and render, in part.
2
"The extraterritorial jurisdiction of a municipality is the unincorporated area that is contiguous
to the corporate boundaries of the municipality" and that extends a statutorily-defined distance from
those boundaries depending on the population of the municipality. TEX. LOC. GOV'T CODE ANN.
§ 42.021 (West 2008). The purpose of extraterritorial jurisdiction is "to promote and protect the general
health, safety, and welfare of persons residing in and adjacent to the municipalities." Id. § 42.001 (West
2008).
2
I. FACTUAL BACKGROUND3
The evidence shows that San Juan and Pharr are adjacent municipalities in the
Texas Rio Grande Valley; San Juan is situated to the east of Pharr. In 1983, San
Juan and Pharr entered into an agreement governing the expansion of the cities' ETJs.
The agreement provided that I Road, a major thoroughfare that runs north and south
between the cities, would serve as the boundary between San Juan and Pharr's ETJs.
Under the agreement, Pharr's ETJ could not expand east of I Road, and San Juan's
ETJ could not expand west of I Road. The agreement contained a renewal provision,
which read as follows: "This agreement shall be in force and effect for a period of ten
years from the effective date of the agreement at which time the same shall expire if
not renewed and the same shall be renewed at the end of subsequent ten year
periods." The parties agree that the agreement governed the boundaries of the cities'
ETJs until at least 1993. The parties dispute whether the agreement was renewed at
that point. San Juan also disputes which documents comprise the agreement
between the parties.
In 1994, 1996, 1997, and 1998, San Juan passed a series of seven ordinances
annexing various parcels of land to its south. Each of the seven annexation
ordinances expanded the corporate boundaries of San Juan and each contained the
following statement about ETJ: "The extraterritorial jurisdiction of the City of San
Juan, Texas, shall expand in conformity with this annexation and shall comprise an
3
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
3
area around the new Corporate Limits of the City of San Juan" consistent with the local
government code. If valid and effective, the ETJ statements in the ordinances would
have extended San Juan's ETJ west of I Road. It is undisputed by the parties that
Pharr raised no objection or challenge to San Juan's 1990s annexation ordinances.
In 2002 and 2003, Pharr passed a series of four annexation ordinances. Each
of the 2002-2003 ordinances annexed property west of I Road. In 2008, Pharr passed
further ordinances annexing land to the east of I Road. San Juan challenged each of
the annexation ordinances. The effect of Pharr's ordinances was both parties
attempting to assert their annexation rights within ETJ claimed by the other. It is this
circumstance that led to this litigation.
II. PROCEDURAL BACKGROUND
In October 2006, San Juan filed suit against Pharr seeking the following
declaratory judgments: voiding Pharr's 2002-2003 annexation ordinances and any
Pharr ordinances annexing land east of I Road; validating San Juan's 1990s
annexation ordinances; and generally stating the "rights, duties and obligations of the
parties as to all ordinances in question." San Juan asked, in the alternative, that the
trial court judicially apportion the cities' ETJs. San Juan later amended its suit to
allege a breach of contract claim against Pharr, arguing that Pharr's annexations had
breached the 1983 agreement. Pharr answered, in relevant part, that the 1983
agreement expired in 1993, at which point Pharr's ETJ statutorily expanded two miles
from its city limits and which ETJ included areas both to the east and west of I Road.
Pharr also counterclaimed for declaratory judgments of its own, namely that: Pharr
4
"enjoys ETJ extending to three and one-half miles from its city limits (including area
east of I Road)"; Pharr "may rightfully annex property within its ETJ subject only to
compliance with the applicable statutory provisions"; and San Juan take nothing by its
suit. Pharr filed a motion for summary judgment, which was granted by the trial court.
However, in December 2007, the trial court granted San Juan's motion for new trial.
San Juan and Pharr then filed new motions for summary judgment. San Juan
filed a traditional motion for summary judgment on its declaratory judgment action on
the ground that San Juan's 1990s annexation ordinances were valid and effective as a
matter of law because Pharr failed to challenge the ordinances within two years of their
passage, as was required by the version of the local government code in effect at the
time. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 TEX. GEN. LAWS 707,
766 (amended 2001) (current version at TEX. LOC. GOV'T CODE ANN. § 43.901 (West
2008)) (enacting the previous version of local government code section 43.901, which
was effective until September 1, 2001); see also TEX. R. CIV. P. 166a(c). San Juan
also filed a partial no-evidence motion for summary judgment on Pharr's declaratory
judgment action on the ground that Pharr could present no evidence that it obtained
the required written consent of San Juan to adopt any of the annexation ordinances
Pharr passed in the 2002, 2003, and 2008, ordinances alleged by San Juan to have
annexed property within San Juan's ETJ. See TEX. LOC. GOV'T CODE ANN. 42.023
(West 2008) (providing that a municipality may not consent to the reduction of its ETJ
unless it "gives its written consent by ordinance or resolution"); see also TEX. R. CIV. P.
5
166a(i).4 Pharr filed a traditional motion for summary judgment, arguing that it had
conclusively proven its entitlement to declaratory judgment regarding: the extent of
Pharr's ETJ; Pharr's right to annex property within its ETJ; the validity and propriety of
Pharr's 2002, 2003, and 2008 annexations in the disputed area; and the invalidity of
San Juan's attempts to expand its ETJ into Pharr's. Pharr also moved for traditional
summary judgment on San Juan's breach of contract cause of action, arguing that
Pharr had conclusively proven that the agreement expired in 1993.
In June 2009, the trial court granted Pharr's motion for summary judgment and
denied San Juan's. In doing so, the trial court entered an order declaring that: (1)
the 1983 agreement expired by its own terms in 1993 and "no other legally valid and
operational written agreement exists between [the cities] regarding their respective
rights to [ETJ]"; (2) Pharr's current ETJ "extends to three and one-half (3.5) miles from
its city limits"; (3) Pharr's current ETJ "extends east of 'I' Road"; and (4) Pharr "may
rightfully annex property within its [ETJ]" subject to the local government code. This
appeal followed.
III. STANDARD OF REVIEW
We review the trial court's granting or denial of a traditional motion for summary
judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no
4
San Juan also filed a no-evidence motion for summary judgment on the ground that Pharr
could not present any evidence on its statute of limitations defense. By this ground, San Juan argued
that because Pharr did not challenge San Juan's 1990s annexation ordinances within two years, Pharr
could not prove its limitations defense. We do not address this ground, however, because it is
effectively subsumed within San Juan's traditional summary judgment ground. See TEX. R. APP. P.
47.1.
6
pet.). When reviewing a traditional summary judgment, we must determine whether
the movant met its burden to establish that (1) no genuine issue of material fact exists,
and (2) the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (citing
Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001)); Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002). In reviewing a traditional summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in favor of the nonmovant. Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). "A party
moving for summary judgment must establish its right to summary judgment on the
issues expressly presented to the trial court by conclusively proving all elements of its
cause of action or defense as a matter of law." Elliot-Williams Co. v. Diaz, 9 S.W.3d
801, 803 (Tex. 1999) (citations omitted); see also TEX. R. CIV. P. 166a(b), (c). A
defendant can also prevail on summary judgment by disproving "at least one of the
essential elements of the plaintiff's causes of action." Diaz, 9 S.W.3d at 803. The
summary judgment movant has conclusively established a matter if reasonable people
could not differ as to the conclusion to be drawn from the evidence. See City of Keller
v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
Although a party generally cannot appeal the denial of a motion for summary
judgment, when both sides move for summary judgment and the trial court grants one
motion and denies the other, the unsuccessful party may appeal both the prevailing
party's motion and the denial of its own. Tex. Mun. Power Agency v. Pub. Util.
7
Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). In such a case, the appellate
court should review both sides' summary judgment evidence, determine all questions
presented, and render the judgment the trial court should have rendered. Dorsett,
164 S.W.3d at 661; FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872
(Tex. 2000).
IV. SAN JUAN'S MOTION FOR SUMMARY JUDGMENT ON THE
VALIDITY OF ITS 1990S ANNEXATIONS
By its first issue, San Juan argues that the trial court erred in denying its motion
for summary judgment on the validity of San Juan's 1990s annexations. San Juan
argues that Pharr conceded the validity of the annexations by admitting that it had
remained silent at the time, and as a result, the trial court erred in refusing to affirm the
validity of those annexations. By this issue, San Juan appears to limit its arguments
to the validity of the annexations, characterizing the issue as a "glaring" oversight by
the trial court. In other words, according to San Juan, Pharr's "candid[] admi[ssion]
that its silence had become conclusive consent" precluded the trial court's "refusal to
affirm the validity of San Juan's annexations of land to its south." However, in its
prayer, San Juan then asks this Court to affirm the validity of the 1990s ordinances,
within which San Juan also purported to extend its ETJ, not merely its city limits
through annexation. And the prayer mirrors the ground on which San Juan sought
traditional summary judgment, in which ground San Juan asked the trial court to affirm
the validity of ordinances in their entirety and which ordinances "extend[ed] the city
limits and therefore the corresponding ETJ of the City of San Juan." (Emphasis
added.) We therefore disagree with San Juan's characterization of the issue as a
8
simple but glaring oversight by the trial court that we can easily correct by granting
summary judgment that the "annexations were valid." Rather, our resolution of San
Juan's traditional summary judgment ground—which involves both annexation and the
possible attendant expansion of San Juan's ETJ—is dependent on our resolution of
San Juan's second and third issues concerning Pharr's motion for summary judgment
and the disputed areas of ETJ.
V. PHARR'S MOTION FOR SUMMARY JUDGMENT
By two issues, San Juan argues that the trial court erred in granting Pharr's
motion for summary judgment. In its second issue, San Juan argues its 1990s
annexation ordinances, to which Pharr allegedly consented, also extended San Juan's
ETJ, thus precluding the later annexations by Pharr. In its third issue, San Juan
argues, alternatively, that the 1983 agreement between San Juan and Pharr was
renewed in 1993 and, as a result, prohibited any annexations and expansion of Pharr's
ETJ east of I Road.
A. 1983 Agreement
We believe that the boundaries of the cities' ETJ at the time of San Juan's 1990s
annexation ordinances are central to determining the effect and scope of San Juan's
ordinances and the validity of Pharr's later annexation ordinances. As a result,
whether the cities' 1983 agreement terminated in 1993 will affect our resolution of the
remaining grounds for summary judgment, and we will therefore first address San
Juan's alternative challenge to the granting of Pharr's motion for summary judgment.
9
By its third issue, San Juan argues that the trial court erred in declaring that the
1983 agreement terminated in 1993. San Juan argues that the termination and
renewal provision of the agreement is ambiguous and that the trial court thus erred in
granting summary judgment on this ground because a fact finder must determine the
intent of the parties when an agreement contains an ambiguity.
If a contract can be given a certain or definite legal meaning, then it is not
ambiguous. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). "When a contract is
not ambiguous, the construction of the written instrument is a question of law for the
court." MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.
1999) (citing Coker, 650 S.W.2d at 393); see J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 229 (Tex. 2003). If a contact is susceptible to more than one reasonable
interpretation, it is ambiguous. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d
310, 312 (Tex. 2005) (per curiam). Lack of clarity, however, does not create an
ambiguity, and not every difference in the interpretation of a contract amounts to an
ambiguity. Universal Health Serv., Inc. v. Renaissance Women's Group, P.A., 121
S.W.3d 742, 746 (Tex. 2003) (quoting Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,
134 (Tex. 1994)). When a contract contains an ambiguity, the granting of a motion for
summary judgment is improper because the interpretation of the contract is a question
of fact for the jury. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987).
San Juan contends that there are two versions of the agreement: one that was
signed by the mayors of both cities (the first version), and another that was included in
the minutes of the Pharr city council meeting at which the agreement was approved by
10
the council (the second version). In the first version, the renewal provision reads as
follows: "This agreement shall be in force and effect for a period of ten years from the
effective date of the agreement at which time the same shall expire if not renewed and
the same shall be renewed at the end of subsequent ten year periods." In the second
version, the renewal provision reads as follows: "This agreement shall be in force and
effect for a period of ten years from the effective date of the agreement at which time
the same shall expire if not renewed at the end of subsequent ten year periods."
Citing Progressive County Mutual Insurance Company v. Kelley, San Juan argues that
the existence of two competing versions of the agreement creates an ambiguity that
prevents summary judgment. See 284 S.W.3d 805, 807-08 (Tex. 2009) (per curiam).
However, Kelley is distinguishable from this case.
In Kelley, the plaintiff was injured in an automobile accident. Id. at 806. The
plaintiff was insured under a family automobile insurance policy with the defendant that
covered five family cars. Id. Four of the family's cars were listed on one policy
document; the fifth car was listed on a separate document. Id. The documents
contained separate policy numbers. Id. After the defendant paid the policy limit, the
plaintiff attempted to make a claim under the second policy document, but the
defendant denied that there was a second policy and refused to make additional
payments. Id. The supreme court held that "the existence of two documents"
created a latent ambiguity, and the court therefore considered extrinsic evidence
before concluding that the plaintiff had raised a fact issue as to whether the defendant
had issued two insurance policies. Id. at 807-08. In other words, the supreme court
11
held "that the documents are ambiguous as to whether one or two policies existed."
Id. at 808.
Here, only one version was signed by the mayors of both cities. The re-printing
of the agreement in the Pharr council meeting minutes did not create a separate or
competing document. Unlike the plaintiff in Kelley who possessed two separate
documents with two separate policy numbers and believed that she held two distinct
insurance policies, the parties here do not contend that there were two separate
annexation and ETJ agreements. In short, we are not persuaded that Kelley controls
our ambiguity determination in this case.
Rather, it is clear that the agreement between the parties is embodied in the
version signed by both mayors. And we cannot conclude that the renewal provision
contained in that document is ambiguous. The provision states that the agreement
shall be in force and effect for ten years from the effective date—i.e., from 1983 to
1993—and then "shall expire if not renewed." See Coker, 650 S.W.2d at 393. The
mandatory nature of this language clearly contemplates that the parties must take
some affirmative action to renew the contract, failing which it shall expire. The next
phrase regarding subsequent ten-year periods does not come into play if the parties do
not renew the agreement at the end of the first ten-year period. Any other
construction would render the "shall expire" mandate meaningless. See Frost Nat'l
Bank, 165 S.W.3d at 312 (holding that we should avoid constructions that render
contract terms meaningless). And any lack of clarity about "subsequent ten year
periods" does not create an ambiguity here. See Universal Health Serv., Inc., 121
12
S.W.3d at 746.
It is undisputed that neither city took any action to renew the agreement in 1993.
Thus, we conclude that the agreement expired in 1993, and the cities' annexation
powers became governed solely by statute from that point forward. See MCI
Telecomms. Corp., 995 S.W.2d at 651 (holding that interpretation of an unambiguous
contract is a question of law for the court). As such, at the expiration of the agreement
in 1993, Pharr's ETJ expanded to its statutory distance of two miles from Pharr's city
limits.5 See TEX. LOC. GOV'T CODE ANN. § 42.021(a)(3). It is undisputed that, under
this scenario, Pharr's expanded ETJ would have extended east of I Road and included
the land south of San Juan in which San Juan later annexed property in its 1994, 1996,
1997, and 1998 ordinances.
Based on the foregoing, we conclude that Pharr conclusively negated San
Juan's breach of contract action. See Diaz, 9 S.W.3d at 803. The 1983 agreement
expired by its own terms in 1993; as a result, any action taken by Pharr with regard to
expanding its city limits and ETJ was not governed by the agreement from that point
forward, so Pharr's 2002, 2003, and 2008 actions could not have breached the 1983
agreement. The trial court therefore did not err in granting Pharr's motion for
summary judgment on this ground. San Juan's third issue is overruled.
B. Expansion of San Juan's ETJ under the Local Government Code
Having determined that the 1983 agreement expired by its own terms in 1993
5
The parties do not dispute that Pharr's population at that time entitled it to two miles of ETJ.
See TEX. LOC. GOV'T CODE ANN. § 42.021(a)(3) (providing that a municipality with a population of 25,000
to 49,999 has ETJ within two miles of its city limits).
13
and that Pharr's ETJ automatically expanded east of I Road as a result, we now
address San Juan's second issue, in which it argues that by failing to challenge San
Juan's 1990s annexation ordinances, Pharr consented not only to the expansion of
San Juan's city limits but also to the accompanying expansion of San Juan's ETJ
around those new annexations. Under the rationale of this argument, San Juan's ETJ
would have expanded west of I Road, and both Pharr's 2002-2003
annexations—which annexed property on the west side of I Road but within San
Juan's purportedly expanded ETJ—and Pharr's 2008 annexations east of I Road
would have been invalid encroachments into San Juan's ETJ. In support of the
foregoing, San Juan relies on the version of local government code section 43.901 in
effect at the time of those ordinances and cases interpreting that earlier version of the
statute.
When San Juan passed its 1990s annexation ordinances, section 43.901 of the
local government code read as follows:
A municipal ordinance defining boundaries of or annexing area to
a municipality is conclusively presumed to have been adopted with the
consent of all appropriate persons if:
(1) two years have expired after the date of the adoption; and
(2) an action to annul or review the adoption of the ordinance has not
been initiated in that two-year period.
See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 TEX. GEN. LAWS 707, 766;6
6
The current version of section 43.901 is the result of a 2001 amendment, which added the
phrase "except another municipality" after "all appropriate persons." See Act of May 15, 2001, 77th
Leg., R.S., ch. 401, § 1, 2001 TEX. GEN. LAWS 733, 733-34 (codified at TEX. LOC. GOV'T CODE ANN. §
43.901 (West 2008)). The amendment's effect was to preclude the conclusive presumption when
14
see also City of Murphy v. City of Parker, 932 S.W.2d 479, 480-81 (Tex. 1996) (quoting
and interpreting the prior version of section 43.901). In City of Murphy v. City of
Parker, the Texas Supreme Court concluded that the phrase "all appropriate persons .
. . clearly include[d] municipalities." 932 S.W.2d at 481. The supreme court then
held that "the plain language of section 43.901 erects a complete statutory bar to any
challenge of a municipality's annexation ordinance based on lack of consent." Id.; see
City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 631-32 (Tex. App.—Fort Worth
2003, pet. denied); see also City of Webster v. City of Houston, No. 14-04-00353-CV,
2005 WL 913813, at *2 (Tex. App.—Houston [14th Dist.] Apr. 19, 2005, no pet.) (mem.
op.).
We believe that the foregoing law and cases stand for the proposition that a
city's annexation—i.e., the expansion of the city's city limits—into another city's
existing ETJ is conclusively presumed to be valid absent any action by the other city to
challenge the annexation within two years. Here, it is undisputed that Pharr did not
take any action to challenge the annexations accomplished by San Juan's 1994, 1996,
1997, and 1998 ordinances, and as a result, Pharr is barred from challenging those
annexations today. See City of Murphy, 932 S.W.2d at 481. However, by its second
issue, San Juan asks us to enlarge this presumption, and resulting limitations bar, to
an annexation ordinance's expansion of the annexing city's ETJ. We will not do so, as
the statutory scheme governing ETJ discourages such a result.
The prior version of 43.901 and City of Murphy and its progeny do not address
another municipality failed to challenge an annexation ordinance. See TEX. LOC. GOV'T CODE ANN. §
43.901.
15
the subject of ETJ. In particular, we find the title of section 43.901
telling—"Circumstances in which Consent to Boundaries or Annexation is Presumed."
See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 TEX. GEN. LAWS 707, 766
(emphasis added); see also TEX. LOC. GOV'T CODE ANN. § 42.021 (West 2008)
(distinguishing between a city's boundaries and its ETJ by providing that the
"extraterritorial jurisdiction of a municipality is the unincorporated area that is
contiguous to the corporate boundaries of the municipality"). Further, City of Murphy
and the cases following it speak only to the propriety and effect of annexations of land
in another city's extraterritorial jurisdiction. See City of Murphy, 932 S.W.2d at 482
("After two years, section 43.901 created the conclusive presumption that Murphy
consented to the annexation, and barred any subsequent challenges." (emphasis
added)); City of Roanoke, 111 S.W.3d at 630, 632 (addressing annexation of a certain
tract of land and whether the silence of the city in whose ETJ the annexing city
expanded its boundaries amounted to a conclusive presumption that the annexation
was valid); see also City of Webster, 2005 WL 913813, at *2 (holding that the prior
version of section 43.901 "bars a municipality's challenge to another municipality's
annexation of its extraterritorial jurisdiction if not brought within two years") (emphasis
added)).
Other provisions of the local government code, by contrast, clearly govern the
expansion and reduction of ETJ. For example, while section 42.022 provides that the
ETJ of a city "expands with [] annexation" consistent with the city's population in
accordance with section 42.021, section 42.022 also provides that a city's expansion of
16
ETJ "through annexation . . . may not include any area in the existing extraterritorial
jurisdiction of another municipality. TEX. LOC. GOV'T CODE ANN. § 42.022(a), (c) (West
2008); see also id. § 42.021(a) (setting the statutory ETJs of cities depending on their
populations). With regard to the reduction of ETJ, section 42.023 provides that the
"extraterritorial jurisdiction of a municipality may not be reduced unless the governing
body of the municipality gives its written consent by ordinance or resolution . . . ." Id. §
42.023 (West 2008).7
As noted above, when the 1983 agreement between the cities expired in 1993,
Pharr's ETJ automatically expanded to include the land south of San Juan in which
San Juan later annexed land by its 1994, 1996, 1997, and 1998 ordinances. See id. §
42.021(a). Therefore, San Juan's expansion of its city limits through those
annexations was accomplished by taking land within Pharr's existing ETJ, which had
the effect of reducing Pharr's ETJ without its written consent. See City of Roanoke,
111 S.W.3d at 631 (noting that the effect of section 42.023 is that a city may not annex
land that is within another city's ETJ with the other city's written consent); see also TEX.
LOC. GOV'T CODE ANN. § 42.023. And even though, under the prior version of 43.901
and City of Murphy, Pharr cannot challenge the annexations by San Juan because it
did not object within two years, we cannot conclude that Pharr likewise consented to
the further reduction of its ETJ and forfeited any challenges to that reduction. In other
words, we conclude that any further reduction of Pharr's ETJ through an expansion
7
Local government code sections 42.021, 42.022, and 42.023 are currently the same as they
were at the time of San Juan's 1990s annexations. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, §
1, 1987 TEX. GEN. LAWS 707, 741 (codified at TEX. LOC. GOV'T CODE ANN. §§ 42.021-.023 (West 2008)).
17
San Juan's ETJ around the newly annexed land was prohibited by the ETJ scheme in
the local government code. See TEX. LOC. GOV'T CODE ANN. § 42.023. Moreover, we
conclude that San Juan could not expand its ETJ through the 1990s annexations
because that expansion would have included areas within Pharr's existing ETJ. See
id. § 42.022(c).
In sum, Pharr established its right to its requested declaratory relief as a matter
of law. See Diaz, 9 S.W.3d at 803; see also TEX. R. CIV. P. 166a(c). San Juan's ETJ
did not expand around its 1990s annexations, and Pharr acted within its rights to pass
its 2002, 2003, and 2008 annexation ordinances because those annexations were
within Pharr's existing ETJ. The trial court therefore did not err in granting summary
judgment on Pharr's remaining grounds embodied in the trial court's judgment: that
(1) Pharr's current ETJ extends to three and one-half [] miles from its city limits";8 (2)
Pharr's current ETJ "extends east of 'I' Road"; and (3) Pharr "may rightfully annex
property within its [ETJ]" subject to the local government code.9 San Juan's second
issue is overruled.10
8
The parties do not dispute that Pharr's current population entitles it to this amount of ETJ.
9
Likewise, the trial court did not err in denying San Juan's partial no-evidence summary
judgment on the validity of Pharr's 2002, 2003, and 2008 annexations as the evidence conclusively
established that Pharr's annexations were within its existing ETJ. See King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003).
10
In its second issue, San Juan also asks the Court to "clarify that the ETJ surrounding San
Juan's corporate boundaries, including its annexations, forms the eastern boundary of Pharr's ETJ." In
other words, if the Court determines that San Juan's ETJ expanded with its 1990s annexations, that ETJ
would stretch to the Rio Grande River, and as a result, "Pharr cannot possess ETJ further to the east,
because that land is no longer 'contiguous' or 'adjacent' to Pharr's boundaries." See TEX. LOC. GOV'T
CODE ANN. § 42.021. However, having concluded that San Juan's ETJ did not, in fact, expand with its
1990s annexations, Pharr's ETJ that now surrounds San Juan, consistent with the statute, is still
contiguous to its borders. We are therefore not persuaded by San Juan's argument in this regard.
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VI. SAN JUAN'S MOTION FOR SUMMARY JUDGMENT ON THE
VALIDITY OF ITS 1990S ORDINANCES (REVISITED)
Having overruled San Juan's second and third issues and concluded that the
1983 agreement expired by its own terms in 1993, Pharr's ETJ automatically expanded
at that point, and Pharr's ordinances annexing land in that expanded ETJ were valid,
we now address San Juan's first issue in which it challenges the trial court's denial of
its traditional motion for summary judgment. In that motion, San Juan argued that it
was entitled to summary judgment on its request for a declaration that its 1994, 1996,
1997, and 1998 annexation ordinances were valid and effective.
As discussed above, the evidence shows that San Juan passed seven
ordinances in 1994, 1996, 1997, and 1998 annexing land to its south. Those
ordinances also purported to expand San Juan's ETJ around those annexations.
Because the 1983 agreement between the cities had expired, however, the land into
which San Juan annexed was Pharr's existing ETJ, and as a result, we believe that
San Juan's 1990s annexations were improper encroachments into Pharr's ETJ. See
MCI Telecomms. Corp., 995 S.W.2d at 651; see also TEX. LOC. GOV'T CODE ANN. §§
42.022(c), 42.023. Nonetheless, because Pharr did not challenge those annexations
within two years, the annexations were conclusively presumed to be valid, and Pharr
was thereafter barred from challenging the validity of the annexations. See City of
Murphy, 932 S.W.2d at 481; see also Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1,
1987 TEX. GEN. LAWS 707, 766. But, as explained previously, Pharr did not forfeit its
right to challenge San Juan's attempts to expand its ETJ. See TEX. LOC. GOV'T CODE
ANN. §§ 42.022(c), 42.023.
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Based on the foregoing, we conclude that San Juan proved as a matter of law
that its annexations—and the portions of its ordinances enacting those
annexations—are valid. See TEX. R. CIV. P. 166a(c). For this reason, San Juan's
first issue is partially sustained. San Juan cannot, however, prove that it was entitled
to expand its ETJ around those ordinances, and we therefore further conclude that the
portions of the ordinances purporting to expand San Juan's ETJ are invalid. See id.;
see also Diaz, 9 S.W.3d at 803. For this reason, San Juan's first issue is partially
overruled.
VII. CONCLUSION
We affirm the judgment of the trial court granting Pharr's motion for summary
judgment. We also affirm the trial court's denial of San Juan's motion for summary
judgment to the extent it was based on the 1990s ordinances' attempts to enlarge the
ETJ of San Juan around its annexations. We reverse the trial court's denial of San
Juan's motion for summary judgment to the extent it was based on the annexations in
the 1990s ordinances, and we render judgment that the annexations in those seven
ordinances were valid and effective. See Dorsett, 164 S.W.3d at 661; FM Props.
Operating Co., 22 S.W.3d at 872.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
26th day of May, 2011.
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