NUMBER 13-16-00498-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

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.

MEMORANDUM OPINION ON REHEARING Before Chief Justice Valdez and Justices Rodriguez and Hinojosa Memorandum Opinion by Chief Justice Valdez We issued our original memorandum opinion in this cause on May 24, 2018.

Appellees the City of Port Isabel and the Town of Laguna Vista (the Cities) have filed a motion for rehearing. See TEX. R. APP. P. 49.1; 49.7. We deny the motion for rehearing but withdraw our prior memorandum opinion and judgment and substitute the following memorandum opinion and accompanying judgment in their place.

The underlying suit involves a dispute between appellant City of Brownsville and 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.).

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

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 new ground for contesting

At this juncture, we need not address whether and to what extent Brownsville’s MSJ arguments have merit. For purposes of determining our jurisdiction, it suffices that Brownsville’s MSJ genuinely raised an additional ground for contesting standing that the PTJ did not. Cf. City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012).

Consequently, the twenty-day period to bring this interlocutory appeal ran from the trial court’s MSJ ruling, and because Brownsville filed its notice of appeal within twenty days of that ruling, there is no jurisdictional bar to consideration of this interlocutory appeal.

See TEX. R. APP. P. 26.1(b).

III. STANDING Brownsville urges that the trial court erred in denying its MSJ because the Cities lack standing to challenge both the procedure and substance of the annexation ordinances.

A. Standard of Review MSJ is a proper procedural vehicle to challenge standing. See Buck v. Palmer, 79 S.W.3d 309, 324 (Tex. App.—Corpus Christi 2010), rev’d on other grounds, 381 S.W.3d 525 (Tex. 2012). We review a trial court’s summary judgment ruling de novo. See San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex. App.—San Antonio 1996, no writ). Under the summary-judgment standard, Brownsville was entitled to summary judgment only if it established that no genuine issue of material fact existed on the issue of standing and that it was entitled to judgment as a matter of law. See TEX. R. CIV. P.

166a(c); see also Cortina v. P.I. Corp., 385 S.W.3d 613, 615 (Tex. App.—Corpus Christi 2012, no pet.).

B. Applicable Law Standing is a threshold component of subject matter jurisdiction. City of Port Isabel v. Pinnell, 161 S.W.3d 233, 238 (Tex. App.—Corpus Christi 2005, no pet.). A city has standing to challenge another city’s annexation on some (but not all) grounds. Id. The city may challenge the annexation on grounds that would render the annexation “void.” See id. A void annexation would be one that attempts to annex an area with an open boundary description or encroaches on another city’s jurisdiction. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex. 1991). However, even if the annexation is void, the city challenging it must still “suffer some burden peculiar to itself to acquire standing to sue.” 3 Pinnell, 161 S.W.3d at 238 (citing West Lake Hills v. State, 466 S.W.2d 722, 727 (Tex. 1971)).

In contrast to a void annexation, a city lacks standing to challenge procedural irregularities in the passage of the annexation—like noncompliance with statutory notice and hearing requirements; instead, only the State may do so through a quo warranto suit.

See Alexander Oil, 825 S.W.2d at 436-39. The reason is that the procedure-based challenge renders the annexation not void, but merely voidable. See id. C. Analysis 1. Procedure-Based Challenge to Annexations By denying Brownsville’s MSJ, the trial court impliedly found that the Cities had standing to challenge procedural irregularities in the passage of the annexations.

However, “only the [State] can challenge annexation[s] for such procedural irregularities [through a quo warranto suit].” Alexander Oil, 825 S.W.2d at 439. We hold, as a matter of law, that the Cities lacked standing to procedurally challenge the annexations, and therefore, the trial court erred when it impliedly found otherwise. See id. 2. Substance-Based Challenge to Annexations By denying Brownsville’s MSJ, the trial court also impliedly found that the Cities may have standing to challenge the annexations on grounds that would render them void.

The Cities alleged, among other things, that the annexations contain an open boundary description and encroached on their ETJs, rendering them void. Brownsville concedes that these allegations, if proven true, would render the annexations void.

However, Brownsville argues there is no evidence that either appellee suffered any burden peculiar to itself. We disagree. In response to Brownsville’s MSJ, a land surveyor testified by affidavit that specific annexations contained property descriptions that do not close. 4 Brownsville does not dispute that the Cities are the closest municipalities, to the

3. Motion for Rehearing In their motion for rehearing, the Cities contend that our conclusion that they lack standing to challenge Brownsville’s annexation ordinances on procedural grounds is erroneous. Specifically, the Cities argue that in Pinnell, 161 S.W.3d at 238 (Pinnell I) and City of Port Isabel v. Pinnell, 207 S.W.3d 394 (Tex. App.—Corpus Christi 2005, no pet.) (Pinnell II), this Court allowed “a similar combination of procedure-based and substance- based challenges by one municipality against another municipality’s annexation ordinances.”

However, the Texas Supreme Court in Alexander Oil and this Court in Pinnell I clearly state that the only proper method for attacking the validity of a city’s annexation is by quo warranto proceedings unless the annexation is wholly void (i.e., a substantive challenge to the annexation is lodged). This principle is not limited to private entities as the Cities propose; Pinnell I and II involved a challenge by a municipality—South Padre Island, Texas. See Pinnell, 207 S.W.3d at 399; Pinnell, 161 S.W.3d at 238. And, neither Pinnell I nor II stand for the proposition that a city may challenge procedural irregularities

Finally, Brownsville did not argue or attempt to rebut the surveyor’s testimony with evidence establishing that the annexations do close.

Pinnell, 161 S.W.3d at 239. It reaffirmed the proposition that an attack on annexation based on procedural irregularities must be made by the State in an action of quo warranto.

See id. Thus, we are not persuaded by the Cities’ arguments on rehearing.

IV. CONCLUSION We reverse the trial court’s judgment with respect to the Cities’ procedure-based challenge to the annexations and render a judgment dismissing those claims. However, we affirm the trial court’s judgment with respect to the Cites’ substance-based challenges.

/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

Delivered and filed the 19th day of December, 2018.