Reyes Urbina v. Designer Homes Co., Inc., Onesimo Martinez, Javier Villescas [Erroneously Sued as Javier Bilolescas or Billescas], Compass Bank and Gregory S. Kazen, in His Capacity Only as Substitute Trustee

NUMBER 13-09-00422-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CITY OF SAN JUAN, Appellant,

v.

CITY OF PHARR, Appellee.

On appeal from the 275th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Benavides1
Memorandum Opinion by Justice Rodriguez

1
The Honorable Linda Reyna Yañez, former Justice of this Court, did not participate in this
opinion because her term of office expired on December 31, 2010; therefore, this case, which was
argued before the panel on October 28, 2010, will be decided by the two remaining justices on the panel.
See TEX. R. APP. P. 41.1(b) ("After argument, if for any reason a member of the panel cannot participate
in deciding a case, the case may be decided by the two remaining justices.").
 In this extraterritorial jurisdiction (ETJ) case,2 appellant City of San Juan sued

appellee City of Pharr for breach of contract and sought a declaratory judgment

regarding the validity of certain annexation ordinances and the effect of those

ordinances on San Juan's ETJ. Pharr counterclaimed for declaratory judgments

regarding its own ETJ. Both parties filed motions for summary judgment on their

claims, and the trial court granted the motion filed by Pharr and denied the motion filed

by San Juan. By three issues, San Juan argues that the trial court erred in: (1)

denying San Juan's motion for summary judgment on the validity and effect of certain

annexation ordinances passed by San Juan in the 1990s because Pharr did not timely

challenge the ordinances and therefore consented to their validity; and granting

Pharr's motion for summary judgment on the validity and effect of certain annexation

ordinances passed by Pharr in the 2000s because (2) San Juan's 1990s annexation

ordinances, to which Pharr allegedly consented, also extended San Juan's ETJ, thus

precluding the later annexations by Pharr, and (3) alternatively, a 1983 agreement

between San Juan and Pharr prohibited the expansion of Pharr's city limits and ETJ

beyond a certain boundary outlined in the agreement. We affirm, in part, and reverse

and render, in part.

2
"The extraterritorial jurisdiction of a municipality is the unincorporated area that is contiguous
to the corporate boundaries of the municipality" and that extends a statutorily-defined distance from
those boundaries depending on the population of the municipality. TEX. LOC. GOV'T CODE ANN.
§ 42.021 (West 2008). The purpose of extraterritorial jurisdiction is "to promote and protect the general
health, safety, and welfare of persons residing in and adjacent to the municipalities." Id. § 42.001 (West
2008).
2
 I. FACTUAL BACKGROUND3

The evidence shows that San Juan and Pharr are adjacent municipalities in the

Texas Rio Grande Valley; San Juan is situated to the east of Pharr. In 1983, San

Juan and Pharr entered into an agreement governing the expansion of the cities' ETJs.

The agreement provided that I Road, a major thoroughfare that runs north and south

between the cities, would serve as the boundary between San Juan and Pharr's ETJs.

Under the agreement, Pharr's ETJ could not expand east of I Road, and San Juan's

ETJ could not expand west of I Road. The agreement contained a renewal provision,

which read as follows: "This agreement shall be in force and effect for a period of ten

years from the effective date of the agreement at which time the same shall expire if

not renewed and the same shall be renewed at the end of subsequent ten year

periods." The parties agree that the agreement governed the boundaries of the cities'

ETJs until at least 1993. The parties dispute whether the agreement was renewed at

that point. San Juan also disputes which documents comprise the agreement

between the parties.

In 1994, 1996, 1997, and 1998, San Juan passed a series of seven ordinances

annexing various parcels of land to its south. Each of the seven annexation

ordinances expanded the corporate boundaries of San Juan and each contained the

following statement about ETJ: "The extraterritorial jurisdiction of the City of San

Juan, Texas, shall expand in conformity with this annexation and shall comprise an

3
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
3
area around the new Corporate Limits of the City of San Juan" consistent with the local

government code. If valid and effective, the ETJ statements in the ordinances would

have extended San Juan's ETJ west of I Road. It is undisputed by the parties that

Pharr raised no objection or challenge to San Juan's 1990s annexation ordinances.

In 2002 and 2003, Pharr passed a series of four annexation ordinances. Each

of the 2002-2003 ordinances annexed property west of I Road. In 2008, Pharr passed

further ordinances annexing land to the east of I Road. San Juan challenged each of

the annexation ordinances. The effect of Pharr's ordinances was both parties

attempting to assert their annexation rights within ETJ claimed by the other. It is this

circumstance that led to this litigation.

II. PROCEDURAL BACKGROUND

In October 2006, San Juan filed suit against Pharr seeking the following

declaratory judgments: voiding Pharr's 2002-2003 annexation ordinances and any

Pharr ordinances annexing land east of I Road; validating San Juan's 1990s

annexation ordinances; and generally stating the "rights, duties and obligations of the

parties as to all ordinances in question." San Juan asked, in the alternative, that the

trial court judicially apportion the cities' ETJs. San Juan later amended its suit to

allege a breach of contract claim against Pharr, arguing that Pharr's annexations had

breached the 1983 agreement. Pharr answered, in relevant part, that the 1983

agreement expired in 1993, at which point Pharr's ETJ statutorily expanded two miles

from its city limits and which ETJ included areas both to the east and west of I Road.

Pharr also counterclaimed for declaratory judgments of its own, namely that: Pharr

4
"enjoys ETJ extending to three and one-half miles from its city limits (including area

east of I Road)"; Pharr "may rightfully annex property within its ETJ subject only to

compliance with the applicable statutory provisions"; and San Juan take nothing by its

suit. Pharr filed a motion for summary judgment, which was granted by the trial court.

However, in December 2007, the trial court granted San Juan's motion for new trial.

San Juan and Pharr then filed new motions for summary judgment. San Juan

filed a traditional motion for summary judgment on its declaratory judgment action on

the ground that San Juan's 1990s annexation ordinances were valid and effective as a

matter of law because Pharr failed to challenge the ordinances within two years of their

passage, as was required by the version of the local government code in effect at the

time. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 TEX. GEN. LAWS 707,

766 (amended 2001) (current version at TEX. LOC. GOV'T CODE ANN. § 43.901 (West

2008)) (enacting the previous version of local government code section 43.901, which

was effective until September 1, 2001); see also TEX. R. CIV. P. 166a(c). San Juan

also filed a partial no-evidence motion for summary judgment on Pharr's declaratory

judgment action on the ground that Pharr could present no evidence that it obtained

the required written consent of San Juan to adopt any of the annexation ordinances

Pharr passed in the 2002, 2003, and 2008, ordinances alleged by San Juan to have

annexed property within San Juan's ETJ. See TEX. LOC. GOV'T CODE ANN. 42.023

(West 2008) (providing that a municipality may not consent to the reduction of its ETJ

unless it "gives its written consent by ordinance or resolution"); see also TEX. R. CIV. P.

5
166a(i).4 Pharr filed a traditional motion for summary judgment, arguing that it had

conclusively proven its entitlement to declaratory judgment regarding: the extent of

Pharr's ETJ; Pharr's right to annex property within its ETJ; the validity and propriety of

Pharr's 2002, 2003, and 2008 annexations in the disputed area; and the invalidity of

San Juan's attempts to expand its ETJ into Pharr's. Pharr also moved for traditional

summary judgment on San Juan's breach of contract cause of action, arguing that

Pharr had conclusively proven that the agreement expired in 1993.

In June 2009, the trial court granted Pharr's motion for summary judgment and

denied San Juan's. In doing so, the trial court entered an order declaring that: (1)

the 1983 agreement expired by its own terms in 1993 and "no other legally valid and

operational written agreement exists between [the cities] regarding their respective

rights to [ETJ]"; (2) Pharr's current ETJ "extends to three and one-half (3.5) miles from

its city limits"; (3) Pharr's current ETJ "extends east of 'I' Road"; and (4) Pharr "may

rightfully annex property within its [ETJ]" subject to the local government code. This

appeal followed.

III. STANDARD OF REVIEW

We review the trial court's granting or denial of a traditional motion for summary

judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no

4
San Juan also filed a no-evidence motion for summary judgment on the ground that Pharr
could not present any evidence on its statute of limitations defense. By this ground, San Juan argued
that because Pharr did not challenge San Juan's 1990s annexation ordinances within two years, Pharr
could not prove its limitations defense. We do not address this ground, however, because it is
effectively subsumed within San Juan's traditional summary judgment ground. See TEX. R. APP. P.
47.1.
6
pet.). When reviewing a traditional summary judgment, we must determine whether

the movant met its burden to establish that (1) no genuine issue of material fact exists,

and (2) the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (citing

Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001)); Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002). In reviewing a traditional summary judgment, we

consider all the evidence in the light most favorable to the nonmovant, indulging every

reasonable inference and resolving any doubts in favor of the nonmovant. Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). "A party

moving for summary judgment must establish its right to summary judgment on the

issues expressly presented to the trial court by conclusively proving all elements of its

cause of action or defense as a matter of law." Elliot-Williams Co. v. Diaz, 9 S.W.3d

801, 803 (Tex. 1999) (citations omitted); see also TEX. R. CIV. P. 166a(b), (c). A

defendant can also prevail on summary judgment by disproving "at least one of the

essential elements of the plaintiff's causes of action." Diaz, 9 S.W.3d at 803. The

summary judgment movant has conclusively established a matter if reasonable people

could not differ as to the conclusion to be drawn from the evidence. See City of Keller

v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

Although a party generally cannot appeal the denial of a motion for summary

judgment, when both sides move for summary judgment and the trial court grants one

motion and denies the other, the unsuccessful party may appeal both the prevailing

party's motion and the denial of its own. Tex. Mun. Power Agency v. Pub. Util.

7
Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). In such a case, the appellate

court should review both sides' summary judgment evidence, determine all questions

presented, and render the judgment the trial court should have rendered. Dorsett,

164 S.W.3d at 661; FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex. 2000).

IV. SAN JUAN'S MOTION FOR SUMMARY JUDGMENT ON THE
VALIDITY OF ITS 1990S ANNEXATIONS

By its first issue, San Juan argues that the trial court erred in denying its motion

for summary judgment on the validity of San Juan's 1990s annexations. San Juan

argues that Pharr conceded the validity of the annexations by admitting that it had

remained silent at the time, and as a result, the trial court erred in refusing to affirm the

validity of those annexations. By this issue, San Juan appears to limit its arguments

to the validity of the annexations, characterizing the issue as a "glaring" oversight by

the trial court. In other words, according to San Juan, Pharr's "candid[] admi[ssion]

that its silence had become conclusive consent" precluded the trial court's "refusal to

affirm the validity of San Juan's annexations of land to its south." However, in its

prayer, San Juan then asks this Court to affirm the validity of the 1990s ordinances,

within which San Juan also purported to extend its ETJ, not merely its city limits

through annexation. And the prayer mirrors the ground on which San Juan sought

traditional summary judgment, in which ground San Juan asked the trial court to affirm

the validity of ordinances in their entirety and which ordinances "extend[ed] the city

limits and therefore the corresponding ETJ of the City of San Juan." (Emphasis

added.) We therefore disagree with San Juan's characterization of the issue as a
8
simple but glaring oversight by the trial court that we can easily correct by granting

summary judgment that the "annexations were valid." Rather, our resolution of San

Juan's traditional summary judgment ground—which involves both annexation and the

possible attendant expansion of San Juan's ETJ—is dependent on our resolution of

San Juan's second and third issues concerning Pharr's motion for summary judgment

and the disputed areas of ETJ.

V. PHARR'S MOTION FOR SUMMARY JUDGMENT

By two issues, San Juan argues that the trial court erred in granting Pharr's

motion for summary judgment. In its second issue, San Juan argues its 1990s

annexation ordinances, to which Pharr allegedly consented, also extended San Juan's

ETJ, thus precluding the later annexations by Pharr. In its third issue, San Juan

argues, alternatively, that the 1983 agreement between San Juan and Pharr was

renewed in 1993 and, as a result, prohibited any annexations and expansion of Pharr's

ETJ east of I Road.

A. 1983 Agreement

We believe that the boundaries of the cities' ETJ at the time of San Juan's 1990s

annexation ordinances are central to determining the effect and scope of San Juan's

ordinances and the validity of Pharr's later annexation ordinances. As a result,

whether the cities' 1983 agreement terminated in 1993 will affect our resolution of the

remaining grounds for summary judgment, and we will therefore first address San

Juan's alternative challenge to the granting of Pharr's motion for summary judgment.

9
 By its third issue, San Juan argues that the trial court erred in declaring that the

1983 agreement terminated in 1993. San Juan argues that the termination and

renewal provision of the agreement is ambiguous and that the trial court thus erred in

granting summary judgment on this ground because a fact finder must determine the

intent of the parties when an agreement contains an ambiguity.

If a contract can be given a certain or definite legal meaning, then it is not

ambiguous. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). "When a contract is

not ambiguous, the construction of the written instrument is a question of law for the

court." MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.

1999) (citing Coker, 650 S.W.2d at 393); see J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 229 (Tex. 2003). If a contact is susceptible to more than one reasonable

interpretation, it is ambiguous. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d

310, 312 (Tex. 2005) (per curiam). Lack of clarity, however, does not create an

ambiguity, and not every difference in the interpretation of a contract amounts to an

ambiguity. Universal Health Serv., Inc. v. Renaissance Women's Group, P.A., 121

S.W.3d 742, 746 (Tex. 2003) (quoting Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,

134 (Tex. 1994)). When a contract contains an ambiguity, the granting of a motion for

summary judgment is improper because the interpretation of the contract is a question

of fact for the jury. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987).

San Juan contends that there are two versions of the agreement: one that was

signed by the mayors of both cities (the first version), and another that was included in

the minutes of the Pharr city council meeting at which the agreement was approved by

10
the council (the second version). In the first version, the renewal provision reads as

follows: "This agreement shall be in force and effect for a period of ten years from the

effective date of the agreement at which time the same shall expire if not renewed and

the same shall be renewed at the end of subsequent ten year periods." In the second

version, the renewal provision reads as follows: "This agreement shall be in force and

effect for a period of ten years from the effective date of the agreement at which time

the same shall expire if not renewed at the end of subsequent ten year periods."

Citing Progressive County Mutual Insurance Company v. Kelley, San Juan argues that

the existence of two competing versions of the agreement creates an ambiguity that

prevents summary judgment. See 284 S.W.3d 805, 807-08 (Tex. 2009) (per curiam).

However, Kelley is distinguishable from this case.

In Kelley, the plaintiff was injured in an automobile accident. Id. at 806. The

plaintiff was insured under a family automobile insurance policy with the defendant that

covered five family cars. Id. Four of the family's cars were listed on one policy

document; the fifth car was listed on a separate document. Id. The documents

contained separate policy numbers. Id. After the defendant paid the policy limit, the

plaintiff attempted to make a claim under the second policy document, but the

defendant denied that there was a second policy and refused to make additional

payments. Id. The supreme court held that "the existence of two documents"

created a latent ambiguity, and the court therefore considered extrinsic evidence

before concluding that the plaintiff had raised a fact issue as to whether the defendant

had issued two insurance policies. Id. at 807-08. In other words, the supreme court

11
held "that the documents are ambiguous as to whether one or two policies existed."

Id. at 808.

Here, only one version was signed by the mayors of both cities. The re-printing

of the agreement in the Pharr council meeting minutes did not create a separate or

competing document. Unlike the plaintiff in Kelley who possessed two separate

documents with two separate policy numbers and believed that she held two distinct

insurance policies, the parties here do not contend that there were two separate

annexation and ETJ agreements. In short, we are not persuaded that Kelley controls

our ambiguity determination in this case.

Rather, it is clear that the agreement between the parties is embodied in the

version signed by both mayors. And we cannot conclude that the renewal provision

contained in that document is ambiguous. The provision states that the agreement

shall be in force and effect for ten years from the effective date—i.e., from 1983 to

1993—and then "shall expire if not renewed." See Coker, 650 S.W.2d at 393. The

mandatory nature of this language clearly contemplates that the parties must take

some affirmative action to renew the contract, failing which it shall expire. The next

phrase regarding subsequent ten-year periods does not come into play if the parties do

not renew the agreement at the end of the first ten-year period. Any other

construction would render the "shall expire" mandate meaningless. See Frost Nat'l

Bank, 165 S.W.3d at 312 (holding that we should avoid constructions that render

contract terms meaningless). And any lack of clarity about "subsequent ten year

periods" does not create an ambiguity here. See Universal Health Serv., Inc., 121

12
S.W.3d at 746.

It is undisputed that neither city took any action to renew the agreement in 1993.

Thus, we conclude that the agreement expired in 1993, and the cities' annexation

powers became governed solely by statute from that point forward. See MCI

Telecomms. Corp., 995 S.W.2d at 651 (holding that interpretation of an unambiguous

contract is a question of law for the court). As such, at the expiration of the agreement

in 1993, Pharr's ETJ expanded to its statutory distance of two miles from Pharr's city

limits.5 See TEX. LOC. GOV'T CODE ANN. § 42.021(a)(3). It is undisputed that, under

this scenario, Pharr's expanded ETJ would have extended east of I Road and included

the land south of San Juan in which San Juan later annexed property in its 1994, 1996,

1997, and 1998 ordinances.

Based on the foregoing, we conclude that Pharr conclusively negated San

Juan's breach of contract action. See Diaz, 9 S.W.3d at 803. The 1983 agreement

expired by its own terms in 1993; as a result, any action taken by Pharr with regard to

expanding its city limits and ETJ was not governed by the agreement from that point

forward, so Pharr's 2002, 2003, and 2008 actions could not have breached the 1983

agreement. The trial court therefore did not err in granting Pharr's motion for

summary judgment on this ground. San Juan's third issue is overruled.

B. Expansion of San Juan's ETJ under the Local Government Code

Having determined that the 1983 agreement expired by its own terms in 1993

5
The parties do not dispute that Pharr's population at that time entitled it to two miles of ETJ.
See TEX. LOC. GOV'T CODE ANN. § 42.021(a)(3) (providing that a municipality with a population of 25,000
to 49,999 has ETJ within two miles of its city limits).
13
and that Pharr's ETJ automatically expanded east of I Road as a result, we now

address San Juan's second issue, in which it argues that by failing to challenge San

Juan's 1990s annexation ordinances, Pharr consented not only to the expansion of

San Juan's city limits but also to the accompanying expansion of San Juan's ETJ

around those new annexations. Under the rationale of this argument, San Juan's ETJ

would have expanded west of I Road, and both Pharr's 2002-2003

annexations—which annexed property on the west side of I Road but within San

Juan's purportedly expanded ETJ—and Pharr's 2008 annexations east of I Road

would have been invalid encroachments into San Juan's ETJ. In support of the

foregoing, San Juan relies on the version of local government code section 43.901 in

effect at the time of those ordinances and cases interpreting that earlier version of the

statute.

When San Juan passed its 1990s annexation ordinances, section 43.901 of the

local government code read as follows:

A municipal ordinance defining boundaries of or annexing area to
a municipality is conclusively presumed to have been adopted with the
consent of all appropriate persons if:

(1) two years have expired after the date of the adoption; and

(2) an action to annul or review the adoption of the ordinance has not
been initiated in that two-year period.

See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 TEX. GEN. LAWS 707, 766;6

6
The current version of section 43.901 is the result of a 2001 amendment, which added the
phrase "except another municipality" after "all appropriate persons." See Act of May 15, 2001, 77th
Leg., R.S., ch. 401, § 1, 2001 TEX. GEN. LAWS 733, 733-34 (codified at TEX. LOC. GOV'T CODE ANN. §
43.901 (West 2008)). The amendment's effect was to preclude the conclusive presumption when
14
see also City of Murphy v. City of Parker, 932 S.W.2d 479, 480-81 (Tex. 1996) (quoting

and interpreting the prior version of section 43.901). In City of Murphy v. City of

Parker, the Texas Supreme Court concluded that the phrase "all appropriate persons .

. . clearly include[d] municipalities." 932 S.W.2d at 481. The supreme court then

held that "the plain language of section 43.901 erects a complete statutory bar to any

challenge of a municipality's annexation ordinance based on lack of consent." Id.; see

City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 631-32 (Tex. App.—Fort Worth

2003, pet. denied); see also City of Webster v. City of Houston, No. 14-04-00353-CV,

2005 WL 913813, at *2 (Tex. App.—Houston [14th Dist.] Apr. 19, 2005, no pet.) (mem.

op.).

We believe that the foregoing law and cases stand for the proposition that a

city's annexation—i.e., the expansion of the city's city limits—into another city's

existing ETJ is conclusively presumed to be valid absent any action by the other city to

challenge the annexation within two years. Here, it is undisputed that Pharr did not

take any action to challenge the annexations accomplished by San Juan's 1994, 1996,

1997, and 1998 ordinances, and as a result, Pharr is barred from challenging those

annexations today. See City of Murphy, 932 S.W.2d at 481. However, by its second

issue, San Juan asks us to enlarge this presumption, and resulting limitations bar, to

an annexation ordinance's expansion of the annexing city's ETJ. We will not do so, as

the statutory scheme governing ETJ discourages such a result.

The prior version of 43.901 and City of Murphy and its progeny do not address

another municipality failed to challenge an annexation ordinance. See TEX. LOC. GOV'T CODE ANN. §
43.901.
15
the subject of ETJ. In particular, we find the title of section 43.901

telling—"Circumstances in which Consent to Boundaries or Annexation is Presumed."

See Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 TEX. GEN. LAWS 707, 766

(emphasis added); see also TEX. LOC. GOV'T CODE ANN. § 42.021 (West 2008)

(distinguishing between a city's boundaries and its ETJ by providing that the

"extraterritorial jurisdiction of a municipality is the unincorporated area that is

contiguous to the corporate boundaries of the municipality"). Further, City of Murphy

and the cases following it speak only to the propriety and effect of annexations of land

in another city's extraterritorial jurisdiction. See City of Murphy, 932 S.W.2d at 482

("After two years, section 43.901 created the conclusive presumption that Murphy

consented to the annexation, and barred any subsequent challenges." (emphasis

added)); City of Roanoke, 111 S.W.3d at 630, 632 (addressing annexation of a certain

tract of land and whether the silence of the city in whose ETJ the annexing city

expanded its boundaries amounted to a conclusive presumption that the annexation

was valid); see also City of Webster, 2005 WL 913813, at *2 (holding that the prior

version of section 43.901 "bars a municipality's challenge to another municipality's

annexation of its extraterritorial jurisdiction if not brought within two years") (emphasis

added)).

Other provisions of the local government code, by contrast, clearly govern the

expansion and reduction of ETJ. For example, while section 42.022 provides that the

ETJ of a city "expands with [] annexation" consistent with the city's population in

accordance with section 42.021, section 42.022 also provides that a city's expansion of

16
ETJ "through annexation . . . may not include any area in the existing extraterritorial

jurisdiction of another municipality. TEX. LOC. GOV'T CODE ANN. § 42.022(a), (c) (West

2008); see also id. § 42.021(a) (setting the statutory ETJs of cities depending on their

populations). With regard to the reduction of ETJ, section 42.023 provides that the

"extraterritorial jurisdiction of a municipality may not be reduced unless the governing

body of the municipality gives its written consent by ordinance or resolution . . . ." Id. §

42.023 (West 2008).7

As noted above, when the 1983 agreement between the cities expired in 1993,

Pharr's ETJ automatically expanded to include the land south of San Juan in which

San Juan later annexed land by its 1994, 1996, 1997, and 1998 ordinances. See id. §

42.021(a). Therefore, San Juan's expansion of its city limits through those

annexations was accomplished by taking land within Pharr's existing ETJ, which had

the effect of reducing Pharr's ETJ without its written consent. See City of Roanoke,

111 S.W.3d at 631 (noting that the effect of section 42.023 is that a city may not annex

land that is within another city's ETJ with the other city's written consent); see also TEX.

LOC. GOV'T CODE ANN. § 42.023. And even though, under the prior version of 43.901

and City of Murphy, Pharr cannot challenge the annexations by San Juan because it

did not object within two years, we cannot conclude that Pharr likewise consented to

the further reduction of its ETJ and forfeited any challenges to that reduction. In other

words, we conclude that any further reduction of Pharr's ETJ through an expansion

7
Local government code sections 42.021, 42.022, and 42.023 are currently the same as they
were at the time of San Juan's 1990s annexations. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, §
1, 1987 TEX. GEN. LAWS 707, 741 (codified at TEX. LOC. GOV'T CODE ANN. §§ 42.021-.023 (West 2008)).
17
San Juan's ETJ around the newly annexed land was prohibited by the ETJ scheme in

the local government code. See TEX. LOC. GOV'T CODE ANN. § 42.023. Moreover, we

conclude that San Juan could not expand its ETJ through the 1990s annexations

because that expansion would have included areas within Pharr's existing ETJ. See

id. § 42.022(c).

In sum, Pharr established its right to its requested declaratory relief as a matter

of law. See Diaz, 9 S.W.3d at 803; see also TEX. R. CIV. P. 166a(c). San Juan's ETJ

did not expand around its 1990s annexations, and Pharr acted within its rights to pass

its 2002, 2003, and 2008 annexation ordinances because those annexations were

within Pharr's existing ETJ. The trial court therefore did not err in granting summary

judgment on Pharr's remaining grounds embodied in the trial court's judgment: that

(1) Pharr's current ETJ extends to three and one-half [] miles from its city limits";8 (2)

Pharr's current ETJ "extends east of 'I' Road"; and (3) Pharr "may rightfully annex

property within its [ETJ]" subject to the local government code.9 San Juan's second

issue is overruled.10

8
The parties do not dispute that Pharr's current population entitles it to this amount of ETJ.
9
Likewise, the trial court did not err in denying San Juan's partial no-evidence summary
judgment on the validity of Pharr's 2002, 2003, and 2008 annexations as the evidence conclusively
established that Pharr's annexations were within its existing ETJ. See King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003).
10
In its second issue, San Juan also asks the Court to "clarify that the ETJ surrounding San
Juan's corporate boundaries, including its annexations, forms the eastern boundary of Pharr's ETJ." In
other words, if the Court determines that San Juan's ETJ expanded with its 1990s annexations, that ETJ
would stretch to the Rio Grande River, and as a result, "Pharr cannot possess ETJ further to the east,
because that land is no longer 'contiguous' or 'adjacent' to Pharr's boundaries." See TEX. LOC. GOV'T
CODE ANN. § 42.021. However, having concluded that San Juan's ETJ did not, in fact, expand with its
1990s annexations, Pharr's ETJ that now surrounds San Juan, consistent with the statute, is still
contiguous to its borders. We are therefore not persuaded by San Juan's argument in this regard.
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 VI. SAN JUAN'S MOTION FOR SUMMARY JUDGMENT ON THE
VALIDITY OF ITS 1990S ORDINANCES (REVISITED)

Having overruled San Juan's second and third issues and concluded that the

1983 agreement expired by its own terms in 1993, Pharr's ETJ automatically expanded

at that point, and Pharr's ordinances annexing land in that expanded ETJ were valid,

we now address San Juan's first issue in which it challenges the trial court's denial of

its traditional motion for summary judgment. In that motion, San Juan argued that it

was entitled to summary judgment on its request for a declaration that its 1994, 1996,

1997, and 1998 annexation ordinances were valid and effective.

As discussed above, the evidence shows that San Juan passed seven

ordinances in 1994, 1996, 1997, and 1998 annexing land to its south. Those

ordinances also purported to expand San Juan's ETJ around those annexations.

Because the 1983 agreement between the cities had expired, however, the land into

which San Juan annexed was Pharr's existing ETJ, and as a result, we believe that

San Juan's 1990s annexations were improper encroachments into Pharr's ETJ. See

MCI Telecomms. Corp., 995 S.W.2d at 651; see also TEX. LOC. GOV'T CODE ANN. §§

42.022(c), 42.023. Nonetheless, because Pharr did not challenge those annexations

within two years, the annexations were conclusively presumed to be valid, and Pharr

was thereafter barred from challenging the validity of the annexations. See City of

Murphy, 932 S.W.2d at 481; see also Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1,

1987 TEX. GEN. LAWS 707, 766. But, as explained previously, Pharr did not forfeit its

right to challenge San Juan's attempts to expand its ETJ. See TEX. LOC. GOV'T CODE

ANN. §§ 42.022(c), 42.023.
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 Based on the foregoing, we conclude that San Juan proved as a matter of law

that its annexations—and the portions of its ordinances enacting those

annexations—are valid. See TEX. R. CIV. P. 166a(c). For this reason, San Juan's

first issue is partially sustained. San Juan cannot, however, prove that it was entitled

to expand its ETJ around those ordinances, and we therefore further conclude that the

portions of the ordinances purporting to expand San Juan's ETJ are invalid. See id.;

see also Diaz, 9 S.W.3d at 803. For this reason, San Juan's first issue is partially

overruled.

VII. CONCLUSION

We affirm the judgment of the trial court granting Pharr's motion for summary

judgment. We also affirm the trial court's denial of San Juan's motion for summary

judgment to the extent it was based on the 1990s ordinances' attempts to enlarge the

ETJ of San Juan around its annexations. We reverse the trial court's denial of San

Juan's motion for summary judgment to the extent it was based on the annexations in

the 1990s ordinances, and we render judgment that the annexations in those seven

ordinances were valid and effective. See Dorsett, 164 S.W.3d at 661; FM Props.

Operating Co., 22 S.W.3d at 872.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the
26th day of May, 2011.

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