Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 103rd District Court of Cameron County,
Chief Justice Valdez and Justices Rodriguez and Hinojosa
ROGELIO VALDEZ CHIEF JUSTICE
underlying suit involves a dispute between appellant City of
Brownsville and appellees City of Port Isabel and Town of
Laguna Vista (the Cities) over extraterritorial jurisdiction
(ETJ). This is an accelerated appeal on the issue of
standing-specifically, whether the Cities have standing to
challenge annexations taken by Brownsville and, if so, on
what grounds. The trial court in this case found that the
Cities may have standing and thus denied Brownsville's
motion for summary judgment which sought a finding to the
contrary. We affirm in part and reverse and render in part.
refers to the unincorporated area that is contiguous to the
corporate boundaries of a city and is located within a
specified distance of those boundaries, depending upon the
number of inhabitants within the city. See Tex. Loc.
Gov't Code Ann. § 42.021(a) (West, Westlaw through
2017 1st C.S.). Based on the number of its inhabitants,
Brownsville is statutorily allotted two miles of ETJ; Port
Isabel is allotted one mile; and Laguna Vista is allotted
one-half mile. See id.
Brownsville Passes Annexation Ordinances, Prompting the
Cities to Sue
passed several ordinances annexing areas allegedly located
within its two-mile ETJ. This prompted the Cities to sue
Brownsville to invalidate these ordinances on both procedural
and substantive grounds. Regarding procedure, the Cities
alleged that the ordinances were invalid because
Brownsville's governing body failed to comply with
certain statutory notice and hearing requirements prior to
enacting them. See Tex. Gov't Code Ann. §
551.041 (West Westlaw through 2017 1st C.S.) (providing that
"[a] governmental body shall give written notice of the
date, hour, place, and subject of each meeting held by the
governmental body"); see also Tex. Loc.
Gov't Code Ann. § 43.052(f) (West, Westlaw through
2017 1st C.S.) (requiring the annexing city to provide
written notice to those affected by the proposed annexation);
id. § 43.0561(c) (requiring the annexing city
to post notice of the annexation hearing in the newspaper).
Regarding substance, the Cities alleged, among other things,
that the property description of the annexed areas do not
close and illegally encroach on their respective ETJs.
See Tex. Loc. Gov't Code Ann. § 42.022(c)
(prohibiting expansion of the ETJ of a city through
annexation of any area in the existing ETJ of another city).
Brownsville Files a Plea to the Jurisdiction (PTJ)
response to the lawsuit, Brownsville initially filed a PTJ,
arguing that the Cities lacked standing to raise their
procedure-based challenge to the ordinances. Specifically,
Brownsville asserted that such a procedural complaint can
only be brought by the State through a quo warranto
suit. Brownsville's PTJ did not challenge
the Cities' substance-based challenge to the ordinances.
The trial court denied Brownsville's PTJ. No
interlocutory appeal was taken from the trial court's
Brownsville Files a Motion for Summary Judgment
Brownsville filed a MSJ, arguing the Cities lacked standing
to challenge not only the procedure but also the substance of
the ordinances. Specifically, Brownsville asserted that the
annexations did not burden the Cities, and therefore, the
Cities stood to gain nothing if the ordinances were to be
invalidated. The Cities provided argument and evidence in
response. After considering Brownsville's MSJ, as well as
the Cities' response thereto, the trial court denied
Brownsville's MSJ. Brownsville then filed this
interlocutory appeal within twenty days of the trial
court's order denying its MSJ. See Tex. R. App.
P. 26.1(b) (providing that, in an accelerated appeal,
"the notice of appeal must be filed within 20 days after
the . . . order is signed"); see also id. R.
28.1(a) (stating that accelerated appeals include
"appeals from interlocutory orders").
threshold matter, the Cities argue that Brownsville-the
appealing party- failed to invoke our jurisdiction because it
never appealed the trial court's order denying its PTJ
but instead opted only to appeal its later-filed MSJ, which
merely re-urged the same issue as the PTJ. An appellate court
lacks jurisdiction to review an appeal if the appealing party
fails to timely appeal the order sought to be reversed.
See id. R. 25.1(b). However, case law directs that,
in this situation, the twenty-day period to appeal runs from
the later-filed MSJ if the MSJ genuinely raised a new ground
that the PTJ did not. See City of Magnolia 4A Econ. Dev.
Corp. v. Smedley, 533 S.W.3d 297, 298 (Tex. 2017). Here,
Brownsville's PTJ and MSJ differ. The PTJ contested only
the Cities' standing to challenge the procedural validity
of the annexation ordinances. In contrast, the MSJ not only
contested standing on that basis but also raised a ...