TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00551-CV

Block House Municipal Utility District, Appellant

v.

The City of Leander, Texas; and Anthony Johnson, Individually and in his Capacity as City Manager, Appellees

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 07-632-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

I concur in the judgment only. I agree with the majority that, once a municipality determines under Texas Parks and Wildlife Code section 26.001(a) there is no feasible and prudent alternative to the use or taking of parkland, the municipality's determination is conclusive unless there is a showing that the municipality acted fraudulently, in bad faith, or arbitrarily and capriciously, in making its determination. See Tex. Parks & Wild. Code Ann. § 26.001(a) (West 2002); Housing Auth. v. Higginbotham, 143 S.W.2d 79, 88 (Tex. 1940); Whittington v. City of Austin, 174 S.W.3d 889, 898 (Tex. App.--Austin 2005, pet. denied); see also Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 268-69 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). Because there has been no such showing in this case, I would affirm the district court's judgment.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: July 10, 2009