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State v. City of Double Horn

Court of Appeals of Texas, Third District, Austin

October 30, 2019

The State of Texas, Appellant
v.
City of Double Horn, Texas; Cathy Sereno; R. G. Carver; Bob Link; James E. Millard; Larry Trowbridge; Glenn Leisey; and John Osborne, Appellees

          FROM THE 424TH DISTRICT COURT OF BURNET COUNTY NO. 49209, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          OPINION

          Thomas J. Baker, Justice

         The State of Texas complains of the trial court's order denying its petition for leave to file an information in the nature of quo warranto, seeking to challenge the City of Double Horn's incorporation as a municipality. See Tex. Civ. Prac. & Rem. Code §§ 66.001-.003 (governing quo warranto suits). Appellees are the City of Double Horn and its elected officials.[1]Because we conclude that the State's petition for leave stated a probable ground for a quo warranto proceeding, we will reverse the trial court's order dismissing the State's petition and remand this cause for further proceedings.

         BACKGROUND

         The State filed its "Petition for Leave to File an Information in the Nature of Quo Warranto" seeking to "declare the incorporation of the City of Double Horn, Texas, invalid and void for failure to comply with statutory requirements for incorporation and to remove the officers of the City of Double Horn from office." The State alleged that the City's incorporation as a Type-B general-law municipality did not meet two statutory requirements: (1) that the community intending to incorporate constitutes an unincorporated town or village prior to incorporation, and (2) that the proposed boundaries include only the territory to be used strictly for municipal purposes. See Tex. Loc. Gov't Code §§ 7.001(1), .002(b).

         The State attached to its petition an "Information in the Nature of Quo Warranto," verified by its counsel, and several exhibits. The State's petition and information alleged the following relevant facts:

• Prior to incorporation, the City of Double Horn was a subdivision of approximately 92 homes in Burnet County, west of Spicewood, Texas on the north side of Texas State Highway 71.
• The subdivision consists of homesites and a single common area that includes a community pool and covered outdoor pavilion.
• The subdivision has no wastewater utility; the homes rely on septic.
• The subdivision obtains its water from wells, and the water is delivered by the Double Horn Creek Water Supply Corporation, but water is not provided to the property owned by Spicewood Crushed Stone LLC (SCS).
• SCS owns approximately 281 acres of rural undeveloped land adjacent to the eastern boundary of the subdivision. SCS plans to use the tract for quarry operations after obtaining all required permits.
• Upon learning of the proposed use for the SCS tract, some residents of the Double Horn subdivision began considering incorporation as a means to stop SCS from operating a quarry on its land.
• The incorporated City of Double Horn includes within its boundaries the Double Horn subdivision and ...

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