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Texas Annexation Battles TEXAS ANNEXATION BATTLES A FEW PRACTICAL LESSONS LEARNED THE HARD WAY Presented by: JERRY E. DRAKE, JR., Deputy City Attorney City of Denton, Texas 215 E. McKinney Denton, Texas 76201 Written by: WM. ANDREW MESSER BENNETT M. WYSE Messer, Campbell & Brady 6351 Preston Road, Suite 350 Frisco, Texas 75034 State Bar of Texas 21st ANNUAL SUING AND DEFENDING GOVERNMENTAL ENTITIES COURSE July 16-17, 2009 San Antonio CHAPTER 18 JERRY E. DRAKE, JR. Deputy City Attorney 215 E. McKinney Denton, TX 76201 (940) 349-8333 Jerry Drake is a Deputy City Attorney for the Denton City Attorney’s Office, where he is assigned primarily to land use issues and litigation. He was admitted to the State Bar of Texas in 1985, the United States District Court for the Northern District of Texas in 1986, the United States District Court for the Eastern District of Texas in 1988, and the Fifth Circuit Court of Appeals in 1986. He received his J.D. from Southern Methodist University in 1985, and his BSME from Southern Methodist University in 1981. Wm. Andrew Messer Andy specializes in governmental law, defense litigation and appeals. He has over 19 years experience involving claims of police liability, civil rights, discrimination, land use, annexation, employment, competitive bidding, city ordinance defense, condemnation, contact, and tort claims of personal injury, property damage, and wrongful death. He has successfully defended numerous governmental entities in trial courts and appellate courts, state and federal, including briefing to the Texas Supreme Court and the United States Supreme Court. Among his appellate decisions are: Lawrence v. City of Wichita Falls, 906 S.W.2d 113 (Tex. App. – Fort Worth 1995, writ denied); Robinett v. Carlisle, 928 S.W.2d 623 (Tex. App. – Fort Worth 1996), cert. denied, 118 S. Ct. 74 (1997); City of Wichita Falls v. Norman, 963 S.W.2d 211 (Tex. App. – Fort Worth 1997, no writ); Perez v. Murff, 972 S.W.2d 78 (Tex. App. – Texarkana 1998, writ denied); City of Cleburne v. Trussell, 10 S.W.2d 407 (Tex. App. – Waco 1999, no pet.); In re Jobe, 42 S.W.3d 174 (Tex. App. – Amarillo 2001, orig. proceeding); Satterfield & Pontikes Construction v. Irving ISD, 123 S.W.3d 63 (Tex. App. – Dallas 2003), reversed and remanded, 197 S.W.3d 390 (Tex. 2006); Allen v. City of Mesquite and Mesquite Board of Adjustment, 2004 WL 612798 (Tex. App. – Texarkana 2004, no pet.); Diaz v. Ellis County, 2005 WL 233997 (Tex. App. – Waco 2005, no pet.); Davis v. City of Grapevine, 188 S.W.3d 748 (Tex. App. – Fort Worth 2005, pet. denied); DeSoto Wildwood Development v. City of Lewisville, 184 S.W.3d 814 (Tex. App. – Fort Worth 2005, no pet.); City of Irving v. Inform Construction, 201 S.W.3d 693 (Tex. 2006); Cunningham v. Chappel Hill ISD, 438 F. Supp.2d 718 (E.D. Tex. 2006); Kuhl v. City of Frisco, 2007 WL 1051760 (E.D. Tex. 2007); Winegarner v. City of Coppell, 2007 WL 1040877 (N. D. Tex. 2007); City of Mesquite v. PKG Contracting, 263 S.W.3d 444 (Tex. App. – Dallas 2008, pet. pending). He recently defended a Texas county against double death claims where two teenagers drove off an old bridge into a creek on their way to church. Both teenagers drowned. The jury, 8 women and 4 men, found that the county was not negligent. Andy also recently successfully defended an annexation dispute between two cities, where the victor city retained its annexation of a 3500+ acre mixed-use development planned to be located on the Dallas North Tollway. Andy is also representing a city in a case pending before the Texas Supreme Court on a million dollar breach of contract case, where the Court is expected to address issues of first impression under the newly enacted Local Government Code contract waiver provisions. Andy is a recognized author and speaker on governmental litigation. He has served on the District 14A Grievance Committee of the State Bar of Texas, and also as the course director for the State Bar of Texas Suing & Defending Governmental Entities course. He acts as city attorney for seven Texas cities. Texas Annexation Battles Chapter 18 TABLE OF CONTENTS 1. HE’S SO DUMB, HE DOESN’T KNOW WHETHER IT’S RAINING OR SOMEONE’S PISSIN’ ON HIS BOOTS ― PRESIDENT LYNDON BAINES JOHNSON................................. 1 2. DON’T KICK A FRESH TURD ON A HOT DAY............................................................................................... 2 3. NEVER WRESTLE A PIG – YOU BOTH GET MUDDY AND THE PIG JUST LIKES IT............................................................................................................................................................................. 3 4. TELLING A MAN TO GO TO HELL AND MAKING HIM DO IT ARE TWO ENTIRELY DIFFERENT PROPOSITIONS.......................................................................................................... 3 5. ONLY FOOLS ARGUE WITH SKUNKS, MULES, OR COOKS ....................................................................... 3 6. DON’T DRINK DOWNSTREAM FROM THE HERD ........................................................................................3 7. DON’T SQUAT WITH YOUR SPURS ON .......................................................................................................... 4 8. HE’S AS CONFUSED AS A COW ON ASTROTURF ........................................................................................ 4 9. ONLY A BUZZARD FEEDS ON FRIENDS ........................................................................................................ 4 EXHIBIT A..................................................................................................................................................................... 7 EXHIBIT B................................................................................................................................................................... 13 i Texas Annexation Battles Chapter 18 TEXAS ANNEXATION BATTLES (A Few Practical Lessons Learned the Hard Way) Texas annexation law is complex. Very complex. It is also confusing. Very confusing. Much has been written about annexations, both procedural and substantive. Little has been written about annexation litigation. This seminar deals with the suing and defending of governmental entities – not the complexities of annexation procedures. This paper thus will deal straightforwardly with annexation litigation strategy – with a few Texas slogans thrown in for good measure to illustrate the practical principles. 1. He’s So Dumb, He Doesn’t Know Whether It’s Raining Or Someone’s Pissin’ On His Boots ― President Lyndon Baines Johnson. The first and foremost lesson in annexation battles involves analyzing the claimed annexation error. Two completely different outcomes will usually result, depending on classification of the alleged error. Thus, the classification of the type of error is critical in annexation litigation. There are two types of annexation errors ― procedural and substantive. Procedural errors are voidable; substantive errors are void. Classifying the annexation error as either procedural or substantive sounds straightforward, but many times it is not nearly that clear. Some errors are clearly procedural, e.g., City of Rockwall v. Hughes, 246 S.W.3d 621, 627 (Tex. 2008)(failing to comply with procedures in the Texas Annexation Act “such as providing proper notice for hearings, conducting the required hearings, and providing an annexation plan” are procedural); Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex. 1992) (mere irregular exercise of valid authority must be brought by the state in quo warranto proceedings); State v. City of Waxahachie, 17 S.W. 348, 349-350 (Tex. 1891)(holding that lack of notice to some voters in the area does not render annexation void); May v. City of McKinney, 479 S.W.2d 114, 120 (Tex. App. –Dallas 1972, writ ref'd n.r.e.)(holding that insufficiency of notice prior to enactment of annexation ordinance was procedural); Werthmann v. City of Fort Worth, 121 S.W.3d 803, 806 (Tex.App. – Fort Worth, 2003, no pet.)(holding that the annexation plan requirement of Section 43.052 was procedural). Some annexation errors are clearly substantive, e.g., annexing territory that exceeds the statutory size limits, Alexander Oil, 825 S.W.2d at 438 (it is well- established that a municipality may only annex in any one calendar year up to 10% of its incorporated area); annexations beyond the 10% rule are made without statutory power and “utterly void.” Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex. 1966); cf, Munday ISD v. Knox City ISD, 254 S.W.2d 381 (Tex. 1953) 1 Texas Annexation Battles Chapter 18 (school district that annexed 24% of its area, exceeding the 10% rule applicable to school districts, was declared void); Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex.1966) (declaring attempted annexation of territory “null and void” because it exceeded statutory size limitations); non-contiguous and non-adjacent annexations, City of Willow Park v. Bryant, 763 S.W.2d 506 (Tex. App. – Fort Worth 1988, no writ)(annexations of lands not adjacent and contiguous to a municipality are void ab initio); City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 729- 30 (Tex. 1971) (holding that ordinances attempting to annex noncontiguous and nonadjacent land in violation of statute were invalid); describing annexed territory where the boundaries do not close, State ex rel. Rose v. City of La Porte, 386 S.W.2d 782 (Tex. 1965); annexation ordinances containing vague and ambiguous property descriptions or containing property descriptions
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