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City of Brownsville v. City of Port Isabel

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 24, 2018

CITY OF BROWNSVILLE, Appellant,
v.
CITY OF PORT ISABEL AND TOWN OF LAGUNA VISTA, Appellees.

          On appeal from the 103rd District Court of Cameron County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

          MEMORANDUM OPINION

          ROGELIO VALDEZ CHIEF JUSTICE

         The 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.

         I. BACKGROUND

         ETJ 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.

         A. Brownsville Passes Annexation Ordinances, Prompting the Cities to Sue

         Brownsville 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).

         B. Brownsville Files a Plea to the Jurisdiction (PTJ)

         In 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.[1] 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 ruling.

         C. Brownsville Files a Motion for Summary Judgment (MSJ)

         Thereafter, 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").[2]

         II. JURISDICTION

         As a 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 ...


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