IN THE
TENTH COURT OF APPEALS
No. 10-10-00403-CV
KAREN HALL,
Appellant
v.
CITY OF BRYAN, TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 09-002813-CV-272
MEMORANDUM OPINION
The City of Bryan annexed part of Karen Hall’s property in 1999. For the second
time, she sued the City for disannexation. See TEX. LOC. GOV'T CODE ANN. § 43.141(b)
(West 2008). Because the trial court did not err in failing to file findings of fact and
conclusions of law or in granting the City’s plea to the jurisdiction, we affirm the trial
court’s judgment.
BACKGROUND
On July 17, 1999, the City adopted an ordinance annexing part of Hall’s property.
In 2004, she sought disannexation. The trial court granted the City’s motion for
summary judgment and Hall appealed. We affirmed the trial court’s judgment in 2005.
See Hall v. City of Bryan, No. 10-05-00417-CV, 2006 Tex. App. LEXIS 10280 (Tex. App.—
Waco Nov. 29, 2006, pet. denied) (mem. op.). In 2010, Hall again sued the City for
disannexation. The trial court granted the City’s plea to the jurisdiction and, the trial
court, if it had any jurisdiction, granted the City’s motion for summary judgment.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In her first issue, Hall argues that the trial court erred in failing to file findings of
fact and conclusions of law. Hall timely filed a request for findings of fact and
conclusions of law and a notice of past due findings of fact and conclusions of law with
respect to the trial court’s decision to grant the City’s plea to the jurisdiction. See TEX. R.
CIV. P. 296; 297. A trial court has no duty, however, to file findings of fact and
conclusions of law when a case, like this one, has been dismissed for lack of subject
matter jurisdiction and no evidentiary hearing has been held. See Zimmerman v.
Robinson, 862 S.W.2d 162, 164 (Tex. App.—Amarillo 1993, no writ); Timmons v. Luce, 840
S.W.2d 582, 586 (Tex. App.—Tyler 1992, no writ). See also Wion v. Thayler, No. 10-09-
00369-CV, 2010 Tex. App. LEXIS 9153, 2-3 (Tex. App.—Waco Nov. 17, 2010, no pet.)
(mem. op.) (trial court did not err in failing to file findings of fact and conclusions of
law after plea to the jurisdiction granted). Accordingly, the trial court did not err in
failing to file findings of fact and conclusions of law, and Hall’s first issue is overruled.
PLEA TO THE JURISDICTION
In her second issue, Hall asserts that the trial court erred in granting the City’s
plea to the jurisdiction. The City’s initial argument is that Hall lacks standing to bring
Hall v. City of Bryan Page 2
her claim.
Standing is a prerequisite to subject matter jurisdiction and may be raised by a
plea to the jurisdiction. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 313 (Tex. 2008).
Whether a court has subject matter jurisdiction is a question of law. Tex. Natural Res.
Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When a plea to the
jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). However, if a plea to the
jurisdiction challenges the existence of jurisdictional facts, we consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional issues
raised as the trial court is required to do. Tex. Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 227 (Tex. 2004).
Disannexation
The Texas Constitution grants cities the power to annex, or bring within its
jurisdiction, land. TEX. CONST. art XI, § 5. The Legislature establishes procedures to be
used by cities in conducting annexations. See TEX. LOC. GOV'T CODE ANN. ch. 43 (West
2008). When a city brings property into its jurisdiction, it must present a proposed plan
for providing city services to the area being annexed. See TEX. LOC. GOV'T CODE ANN. §
43.056 (West 2008). If the city then fails or refuses to provide services or fails or refuses
to cause services to be provided to the area, a majority of the qualified voters of the
annexed area may petition the city for removal of the annexed property from the city by
a process called ―disannexation.‖ Id. § 43.141(a). If the city fails or refuses to disannex
Hall v. City of Bryan Page 3
the area within a specified time period, a lawsuit for disannexation may be brought by
any one of the signers of the petition for disannexation. Id. § 43.141(b). The district
court shall enter an order disannexing the area if the court finds that the city ―failed to
perform its obligations in accordance with an annexation service plan or failed to
perform in good faith.‖
But the process of disannexation, which an individual property owner has
standing to do under section 43.141 of the Local Government Code, is distinguishable
from complaints about the annexation process in the first instance. Complaints about
the annexation process cannot normally be brought by individual landowners. See City
of San Antonio v. Hardee, 70 S.W.3d 207, 211 (Tex. App.—San Antonio 2001, no pet.)
(plaintiffs did not have standing to complain that city did not follow the procedures set
out in section 43.052(b)-(c)); Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438 (Tex.
1991) (plaintiff could not complain that notice given by city did not comply with statute;
that city failed to conduct proper and timely hearings and failed to provide, and
continued to fail to provide, a service plan as required; that city annexed the property
for the purpose of levying ad valorem taxes; and that city had no ability or intention to
provide service to the property); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer,
904 S.W.2d 656, 658 (Tex. 1995) (plaintiff had no standing to challenge alleged failures to
meet the notice and signature requirements). That is the crux of footnote one in our
earlier opinion regarding Hall’s initial efforts to disannex her property. Hall v. City of
Bryan, No. 10-05-00417-CV, 2006 Tex. App. LEXIS 10280, n. 1 (Tex. App.—Waco Nov.
29, 2006, pet. denied) (mem. op.).
Hall v. City of Bryan Page 4
Therefore, to determine if the trial court has jurisdiction of a disannexation suit,
the nature of the landowner’s complaints have to be closely examined to determine if
the complaint is about the annexation process or the implementation of the annexation
plan. See City of San Antonio, 70 S.W.3d at 210 (Historically, a review of an individual
party's standing to challenge annexation inquires whether the challenge attacks a city's
authority to annex the area in question or simply complains of some violation of
statutory procedure.); see also City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex.
App.—Fort Worth 2000, no pet.). A misrepresentation by the city about the plan in the
annexation process is the former type complaint, and an individual property owner
does not have standing to sue for disannexation. In that instance, the only proper
method for attacking the city's annexation of territory is through a quo warranto
proceeding.1 Alexander Oil Co., 825 S.W.2d at 436. On the other hand, a complaint that
the city has failed to provide services to specific property that was annexed, under a
service plan or in good faith, gives that individual property owner standing to sue the
city to have the property disannexed. TEX. LOC. GOV'T CODE ANN. § 43.141(b) (West
2008).
Even an annexation and services plan that was not made in ―good faith‖ could
nevertheless be implemented or attempted to be implemented in good faith. In effect,
the motive for the annexation and the implementation of the annexation services plan
are, and must remain, distinct because only a complaint about the latter gives an
1Quo warranto proceedings are used by the State to protect itself and the good of the public through
agents of the State who control the proceedings. City of Rockwall v. Hughes, 246 S.W.3d 621, 627 n. 8 (Tex.
2008).
Hall v. City of Bryan Page 5
individual landowner the right to complain, i.e. standing, and thus the right to have
property disannexed. See Alexander Oil Co., 825 S.W.2d at 436 n. 1. (―There is no
provision for judicial inquiry into a municipality’s motives to annex land.‖)
Thus we will closely examine the allegations in Hall’s petition to see if she is
complaining about having been annexed in the first instance or whether she is
complaining about the City’s lack of a good faith effort in its performance to provide
services to the area.
Hall’s Lawsuit
Hall brought her disannexation suit strictly pursuant to the provision that the
City failed to perform in good faith. She acknowledged in her first amended petition
that
The City’s failure to provide a statutorily adequate Service Plan was
directly litigated in Hall v. City of Bryan, 2006 Tex. App. LEXIS 10280 (Tex.
App.—Waco, Nov. 29, 2006, pet. denied). A copy of the Opinion is
attached for the Court’s reference as Exhibit ―C.‖ The Court held that an
individual citizen could only hold the City to what is promised in the
Service Plan and not to what was required by TEX. LOC. GOV’T CODE §
43.056. This petition is limited to the City’s lack of good faith in annexing Hwy.
21 E. (Emphasis added).
It is undisputed that the City is not providing full municipal services to the area
annexed. Hall’s complaints with the City’s failure to perform in good faith, however,
relate back to representations, or lack thereof, made by the City at the public hearings
held prior to the annexation. The gist of Hall’s petition is that the City promised at
those public hearings to provide services pursuant to section 43.056 of the Local
Government Code (Provision of Services to Annexed Area) and failed to do so. Hall
Hall v. City of Bryan Page 6
alleged in her petition that the City ―chose to be invidiously misleading, evasive or
totally non-responsive to requests for information about the State of Texas mandated
services.‖ She further alleged in the conclusion of her petition that
Bryan’s deception during public hearings – by admission or omission –
about services rural residents would receive after annexation is beyond
disingenuous. Bryan never intended to meet that obligation and the flim-
flam offered at those public hearings is further evidence of Bryan failing to
perform in good faith.
This is an attack on the validity of the annexation in the first instance, not that the City
failed to perform in good faith. Hall’s attack is, therefore, not governed by section
43.141(b). See City of Wichita Falls, 33 S.W.3d at 417.
Accordingly, because of the type of complaint made by Hall in her first amended
petition, she has no standing to proceed with her petition for disannexation; and the
trial court did not err in granting the City’s plea to the jurisdiction.
Her second issue is overruled.
CONCLUSION
Having found that the trial court did not err in granting the City’s plea to the
jurisdiction, we need not review Hall’s remaining two issues regarding the City’s
motion for summary judgment. 2 The trial court’s judgment is affirmed.3
2We note, however, that by finding it had no jurisdiction of the proceeding, the trial court could not
properly dispose of the proceeding on the merits of the issue as presented in the summary judgment
motions and resulting judgment.
3 Our affirmance of the trial court’s judgment should not be construed as a validation of the process
through which the City has annexed property and subjected the existing property owners to full city
taxation without also providing full city services. If the annexation procedure does not provide for
providing services to existing property owners without them having to pay for the services, it appears to
be non-compliant with the annexation statute. See TEX. LOC. GOV’T CODE ANN. § 43.056(f)(2) (West 2008).
Hall v. City of Bryan Page 7
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 5, 2011
[CV06]
Thus, when the city service plan called for the extension of services to the annexed area only if the
property owner/developer, including existing residents, paid for the extension of services, the plan
appears to depart from the statute. Failure of the service agreement to provide for services to existing
residents in the area annexed without those residents having to pay for the extension services to the area
appears to be a deficient service agreement under the statute. Such a deficiency, if any, is a part of the
annexation process about which Hall cannot complain in this proceeding. Her complaint is not that the
service plan that was adopted and implemented was not complied with, but that the service plan that
should have been adopted and implemented has not been complied with.
Hall v. City of Bryan Page 8