Carroll Independent School District v. Northwest Independent School District, Josh Wright, Mark Schluter, Steve Sprowls, Judy Copp, Ann Davis-Simpson, Lillian Rauch, and Ryder Warren, in Their Official Capacities Only

In the

Court of Appeals
Second Appellate District of Texas
at Fort Worth

No. 02-18-00264-CV

CARROLL INDEPENDENT SCHOOL DISTRICT, Appellant
V.

NORTHWEST INDEPENDENT SCHOOL DISTRICT, JOSH WRIGHT, MARK
SCHLUTER, STEVE SPROWLS, JUDY COPP, ANN DAVIS-SIMPSON, LILLIAN
RAUCH, AND RYDER WARREN, IN THEIR OFFICIAL CAPACITIES ONLY,
Appellees

On Appeal from the 141st District Court

Tarrant County, Texas
Trial Court No. 141-210251-05

Before Sudderth, C.J.; and Bassel, J.
Memorandum Opinion by Chief Justice Sudderth

"The Honorable Lee Gabriel, former justice of this court, was a member of the

panel at the time this case was argued. She did not participate in this opinion because
she retired on December 31, 2020.
MEMORANDUM OPINION
I. Introduction

This is the fourth appeal* in a boundary dispute between two school distticts—
Appellant Carroll Independent School District and Appellee Northwest Independent
School District.? The prior three appeals have dealt with three pleas to the
jurisdiction. When the case finally went to trial 13 years after it was filed, the
testimony focused on what the term “the County Line” meant in the property
description in the 1949 commissioners court orders that created Northwest and how
that term’s use informed the meaning of the 1959 commissioners court order creating
Carroll. Carroll argued that the term referred to the line known as the Gilley line,
which was judicially determined decades after the commissioners courts’ orders issued
to be the actual boundary between Denton and Tarrant counties in a lawsuit between

the counties to which the school districts were not parties. See Tarrant Cty. v. Denton

Cty., 87 SW.3d 159, 175 (Tex. App.—Fort Worth 2002, pet. dented) (op. on reh’g),

"The ptior appeals tn the order in which they were decided ate as follows:
Carroll ISD v. Nw. ISD (Carroll 1), 245 SW.3d 620 (Tex. App.—Fort Worth 2008, pet.
denied); Nw. ISD v. Carroll ISD (Carroll ID), 441 S.W.3d 684 (Tex. App.—Fort Worth
2014, pet. denied) (op. on en banc reconsideration); and Carroll ISD v. Nw. ISD
(Carroll IID), 502 SW.3d 919 (Tex. App.—Fort Worth 2016, no pet.) (en banc).

*In its sixth amended petition, Carroll added Northwest superintendent Karen
G. Rue and Northwest trustees Josh Wright, Mark Schluter, Devonna Holland, Judy
Copp, Ann Davis-Simpson, Mel Fuller, and Lillian Rauch, suing each in his or her
official capacity only. They are Appellees along with Northwest. For the sake of
consistency with Carroll’s claims, we refer to these individuals as “the indtvidual
defendants.”
disapproved on other grounds by Martin v. Amerman, 133 SW.3d 262, 268 (Tex. 2004).
Northwest contended that the term meant the county line that had been surveyed by
George White from December 1852 to January 1853 and that was later retraced by
W.C. Wilson in 2000, 1e., the county line as it was understood to be located in 1949,
tegatdless of whether it had been correctly surveyed at that time.* After holding a
three-day bench trial, the trial court signed a judgment denying Carroll’s request for a
declaratory judgment that the Gilley line is the boundary between the two school
districts, granting Northwest’s request for a declaratory judgment that the school
districts’ common boundaty line is the line retraced by surveyor Wilson (known as the
White line) and therefore that the disputed territory between the White and Gilley
lines is in Northwest, and awarding Northwest attorneys’ fees.

In six issues, Carroll argues that (1) the school districts’ common boundary line
is the Gilley line, the actual county line defined by the legislature and finally located in
the Tarrant County sutt; (2) the trial court erred by “reestablishing” the White line as
the county line contrary to the Tarrant County judgment; (3) the Tarrant County suit
ascertained the location of both the county line and the school districts’ common
boundary; (4) contrary to some of the trial court’s findings and conclusions, the trial

coutt had jurisdiction to decide Carroll’s claim about the location of the school

‘Alternatively, Northwest claims that the term refers to the taxing line, a line
between the districts mapped by the local appraisal district for property-tax-
assessment purposes that closely follows the White line. Because we resolve the issue
in favor of Northwest’s main argument, we do not address this alternative argument.
districts’ common boundary; (5) alternatively, Carroll did not acquiesce in a taxing line
mapped by the local appraisal district as the school districts’ common boundary; and
(6) Northwest cannot recover a declaratory judgment or attorneys’ fees, and,
alternatively, the award of attorneys’ fees 1s excessive. Northwest requests 1n its brief
that we modify the judgment to (a) replace the current reference to a Bates-stamped
exhibit in the voluminous record where the White line’s coordinates can be found
with a specific description of those coordinates and (b) correct a typographical error
in the attorneys’ fees paragraph.
We decide Carroll’s issues as follows:
(1) Our review of the record demonstrates that the context of the 1949 orders
makes clear that “the County Line” reference therein is a metes-and-bounds
descriptor that refers to a line on the ground that had been surveyed by White
in 1852-1853 and that was the only county line that was in existence when the
otders were drafted, regardless of whether it was then an accurate location of
the counties’ actual boundary; thus, “the County Line” reference 1s not to a line
that was finally accurately surveyed over 50 years later in the Tarrant County sutt
that established the counties’ boundaries pursuant to an Interlocal Cooperation
Agreement that did not involve the school districts.
(2 & 3) Because the Tarrant County decision did not establish the school

districts’ common boundary, the trial court 1n this case did not “reestablish” the
county line contrary to that decision; instead, the trial court merely interpreted
the term “the County Line” as used in the 1949 orders.

(4) We previously determined in Carro// LIT that the trial court had jurisdiction
to determine Carroll’s claim about the location of the school districts’ common
boundary, so the trial court erred to the extent that it made findings of fact and
conclusions of law that ignored the law of the case. But such errors were not
reasonably calculated to cause nor did they cause the rendition of an improper
judgment.

(5) Because we hold that “the County Line” descriptor in the 1949 orders
tefers to the White line, we need not address Carroll’s alternative arguments
telated to the taxing line.

(6) The school districts brought competing clatms to have the 1949 orders
interpreted, and we have previously held that these clatms fall under the
Declaratory Judgments Act (DJA). Carroll is therefore not immune ftom
Northwest’s counterclaim seeking a declaratory judgment on the interpretation
of “the County Line” descriptor in the 1949 orders. Because Northwest
ptevailed on tts declaratory-judgment claim and attorneys’ fees are recoverable
under the DJA, the trial court properly awarded Northwest its attorneys’ fees.
Carroll waived its excessiveness argument, which 1s actually a complaint that

the fees were not segregated.
With regard to Northwest’s requested modifications to the syudgment, we modify the
judgment (a) to specifically state that the referenced Bates-stamped pages are attached
and to attach those pages to it via this opinion and (b) to correct the typographical
etror. We therefore affirm the judgment as modified.
II. Background

A. Brief Summary of the Boundary Dispute’

As we stated in the most recent opinion in this series of appeals, “The factual
and procedural history of this case 1s byzantine, protracted, and laborious,” Carroll IIL,
502 S.W.3d at 920, but the boundary dispute can be summarized as follows: “[B]oth
school districts ate claiming an area that lies between the White line on the south and
the Tarrant—-Denton County line [the Gilley line] on the north,” Carrol I, 245 S.W.3d
at 623. “This disputed area... encompasses 842 acres and, apparently, [fewer] than
200 students. Northwest currently levies and collects taxes in the disputed area.”
Carrol IIT, 502 SW.3d at 920. As of 2017, the disputed area contributed
approximately $3.8 million to Northwest’s budget.
B. Carroll I, If, and TT

In Carroll II, we summarized the prior proceedings as follows:

Carroll filed suit against Northwest in 2005 over the location of the

districts’ boundary line. Northwest filed a plea to the jurisdiction, the
trial court granted the plea, and Carroll filed an interlocutory appeal. We

Detailed testimony about the school districts’ boundaries is set forth below in
the section discussing the bench trial—II.C.2.c.
reversed the trial court’s order and remanded [the case] to the trial court
“for further proceedings” after concluding that the trial court had
jurisdiction over Carroll’s claims for trespass to try title and for a
declaratory judgment regarding tts rights and duties in the disputed area.
[Carroll I, 245 S.W.3d at 625-26.| We specifically stated that Carroll was
“not attempting by its suit to change the existing boundary line between
the two school districts” or seeking “to detach and annex the [disputed
[ajrea from Northwest”; rather, Carroll was simply seeking “a judicial
determination regarding in which of these districts the [disputed [a]rea
is, and always has been, located.” Id at 624-25.

On remand,!*! Carroll amended its petition to allege that although
Carroll “contends that the common boundary between the two school
districts 1s located on the county line,” Northwest “has disputed this
contention 1n public filings and otherwise.” Northwest filed a second
plea to the jurisdiction, which the trial court denied. Northwest filed an
interlocutory appeal from the trial court’s denial. In three opinions on
en banc reconsideration, we affirmed the trial court’s denial and, 1n a
corrected judgment, remanded the case to the trial court for [a] trial
“regarding the meaning of the orders and judgments creating the actual
boundary location between the two school districts.” [Carrol] II, 441
S.W.3d at 694-96.|

Td. at 920-21.
After the Carrell IT remand, Carroll again amended its petition, adding
Northwest’s trustees and superintendent as defendants for the purpose of raising an

ultra vires claim.’ Id. at 922. In its ultra vires claim, Carroll alleged that the trustees

‘After we handed down Carroll I, Northwest filed a counterclaim seeking a
declaratory judgment that the disputed territory and the students residing in that
territory ate located, and have always been located, within the boundaries of
Northwest and that Northwest has all the rights and obligations consistent with the
disputed territory’s being located within its boundaries. Northwest also sought
attorneys’ fees.

‘Carroll again raised its claim that Northwest disputed that the county line was
the districts’ boundary “tn public filings and otherwise.” Carroll IIT, 502 S.W.3d at 922
and superintendent, in their official capacities, had committed “illegal, unauthorized|,]
and ultra vires’ actions by exercising authority over the disputed area.* Id With regard
to Carroll’s ultra vires claim, our previous opinion further stated that

Northwest filed a combined third plea to the jurisdiction, special
exceptions, and a motion for summary judgment. In its special
exceptions and motion for summary judgment, Northwest argued that
Carroll’s ultra vires claim impermissibly exceeded the scope of this
court’s remand. In its plea to the jurisdiction, Northwest contended that
Carroll’s ultra vires claim was not ripe because it depended on uncertain,
contingent, or hypothetical future events—a judicial determination that
the disputed area 1s located within Carroll’s boundaries—which “likely”
would never occur based on this court’s limited remand in Caprro/f II.
Northwest also moved to quash some of Carroll’s requested discovery,
specifically Carroll’s request for demographic data to determine the
number of students in the disputed area[| because such inquiry, again,
was outside the scope of this court’s remand.

On December 17, 2015, the trial court held a hearing on
Northwest’s combined motion. At the hearing, the parties and the court
discussed several scheduling deadlines in preparation for trial. The trial
coutt then denied Northwest's motion to quash Cartoll’s discovery
request for demographic information. In arguing its plea to the
jurisdiction, Northwest stated that the trial court did not have subject-
matter jurisdiction over Carroll’s ultra vires claims against the trustees
and superintendent and that the only issue that could be tried on remand

n.3. Carroll asserted that, other than the ultra vires claim, the sixth amended petition
was “a verbatim copy of [its] Fifth Amended Petition,” which was at issue in Carro// IT.

See ad. (citing Carroll IT, 441 S.W.3d at 693).

‘Carroll asserted that this claim was necessary to “forestall[]” Northwest’s
immunity argument. Carroll IIT, 502 S.W.3d at 922 n.3 (citing Czty of E/ Paso v. Heinrich,
284 S.W.3d 366, 372-73 (Tex. 2009), and explaining that an ultra vires claim brought
against a governmental actor in his official capacity is not barred by sovereign
immunity because such a claim asserts that the actor “acted without legal authority”
and thus does “not seek to alter government policy but rather to enforce existing

policy’’).
was “[wlhere on the ground 1s the line that the parties have historically
recognized and acquiesced to for the last 60 years.” Northwest then
argued that because the disputed area “is not going to change hands”
based on the limited nature of this court’s remand, Carroll’s ultra vires
claim was not ripe. The trial court denied the plea and the special
exception. After Carroll confirmed that it and Northwest could not
agree on what issues were properly before the trial court on remand, the
trial court stated on the record that “everything” would be tried so [that]
this court could decide any appeal without the necessity for further trial-
court proceedings |.]

Northwest filed an interlocutory appeal from the trial court’s
denial of its plea to the jurisdiction asserting that Carroll’s ultra vires
claim was not ripe, divesting the trial court of jurisdiction. Northwest
also filed a petition for a writ of mandamus or prohibition, arguing that
the trial court’s stated intention to try “everything” was an abuse of
discretion because the trial court’s jurisdiction was limited to the
parameters of this court’s remand, which did not include the ultra vires
claim. See generally Harris Cty. Children’s Protective Servs. v. Olvera, T7 SW .3d
336, 342-43 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)
(concluding trial court did not have jurisdiction to determine claim on
remand that fell outside the scope of appellate court’s specific remand).

Id. at 922-23. We held tn the appeal that the trial court had subject-matter jurisdiction
over Carroll’s claims “as currently pleaded,” and we affirmed the trial court’s order
denying Northwest’s third plea to the jurisdiction. See zd at 925. We further held that,
based on this jurisdiction, the trial court did not abuse its discretion by stating that it
intended to adjudicate all claims before it. See 7d Therefore, we denied Northwest’s

petition for a writ of mandamus or prohibition. See zd.
C. Proceedings after Carro// IIT

1. Subsequent filings

After our decision 1n Carro// III, Carroll did not amend its sixth amended
petition. Northwest, however, filed its seventh amended answer, denying all
allegations contained in Carroll’s sixth amended petition and Carroll’s first amended
answet to Northwest’s first amended counterclaim. Additionally, Carroll filed a
motion for summary judgment, arguing that because this court had held in Tarrant
County that the White line is not and has never been the actual county line,
Northwest’s declaratory-judgment counterclaim is barred by res judicata. Northwest
filed a response, and Carroll filed a reply. The trial court denied Carroll’s summary-
judgment motion, and the case proceeded to a bench trial.

2. Bench Trial

The purpose of the trial was to determine “the meaning of the ordets and
judgments creating the actual boundary location between the two school districts.”
See Carroll Il, 502 SW.3d at 920-21 (quoting Carrol] I, 441 SW.3d at 694-96).
Duting the trial, the majority of the testimony consisted of a battle of the experts.’

Northwest’s main expert was Gatey Gilley, and he spent most of his testimony going

"The tecotd also includes testimony from previous and then-current
superintendents and various other individuals who were not surveyors. Because those
witnesses did not provide testtmony on the meaning of the descriptor “the County
Line” as used in the 1949 orders, we omit their testtmony from our consideration of
the issues.

10
through the “orders and judgments” that created Northwest’s and Carroll’s
ptedecessor school districts because, as explained in more detail below, Northwest
and Carroll were formed by consolidating numerous predecessor school districts, each
with its own metes-and-bounds description of its boundaries. Because the
ptedecessor school districts’ boundary descriptions were used in the property
descriptions in the “orders and judgments” that created the boundaries for Northwest
and Carroll, Gilley relied on the orders creating the predecessor school districts and
explained how their metes-and-bounds descriptions that used “the County Line” as a
descriptor for the lines on the ground defining the districts’ boundaries were carried
forward to the 1949 orders. Gilley distinguished “the County Line” descriptor used in
the 1949 orders from the true county line (one that acts as a boundary between
political subdivisions) and said that “the County Line” descriptor at issue here
referenced a certain “line... called for in the descriptions.” Using the metes-and-
bounds descriptions, he was able to locate that line and determine that it referred to
the county line as surveyed by White 1n 1852-1853. Carroll’s experts ignored the
relevancy of the predecessor school districts; discounted the White line because White
had incorrectly surveyed the actual boundary between Tarrant and Denton Counties;
and claimed that “the County Line” referenced in the orders creating Northwest and
Carroll was the correct demarcation between the two political subdivisions (the
counties’ boundaries), which was indefinite 1n 1949 and 1959 and was not certain until

Gilley surveyed it in 2004 following the dictates in the Tarrant County sutt’s judgment.

11
Because each of the prior appeals dealt with procedural issues, we did not recite
in out prior opinions the underlying facts about the creation of the school districts or
provide details of the surveys and retracements of the county line. We therefore
continue out summary of the bench trial by setting forth the school districts’ history
and then proceed to the survey history of the county line.

a. Creation of the School Districts"

In 1884, the Texas Legislature passed legislation establishing a system of public
free schools. The legislation, which is referred to as “the school law of 1884,”
required the county commissioners courts of “all counties . . . to subdivide their
respective counties|] tnto convenient school districts.”'' The law further required the
county commissioners courts “to gtve the metes and bounds of each district[| and. . .

[to] designate the same carefully by giving the whole surveys and parts of surveys,

We found helpful Notthwest’s summaty of the creation of the two school
districts. While Carroll does not provide such history in its opening brief or 1n its
teply brief, Carroll’s reply brief does, however, reference Northwest’s summation of
the history and then states, “This lengthy narrattve consumes over 20 [sic] pages, and
it quickly becomes a full-throated argument, complete with case citations.” We do
not include all 13 pages of history from Northwest’s brief, and we omit any argument
that Northwest included 1n the history portion of its brief.

"Act of Feb. 4, 1884, 18th Leg., 1st C.S., ch. 25, § 29, 1884 Tex. Gen. Laws 38,
43, reprinted in 9 H.P.N. Gammel, The Laws of Texas 1822-1597, at 575 (Austin,
Gammel Book Co. 1898); see a/so Tex. Const. art. VI, § 1 cmt. (stating in the editors’
notes that “beginning with the school law of 1884... , Texas made slow but steady
ptogress toward the fulfillment of the constitutional goal of an ‘efficient system of
public free schools”’); A.H. Andrews ¢ Co. v. Curtis, 2 Tex. Civ. App. 678, 679 (1893)
(referencing “the school law of 1884’).

12
with acreage of whole surveys and the approximate acreage of parts of surveys in each
district.”'? The law provided that the county commissionets courts “shall designate
said school districts by numbers” and that the school districts “shall not be changed

without the consent of a majority of the legal voters in all districts affected by such

change.”!9

In 1901, the Denton County Commissioners Court found that its school
districts’ boundaries were “vague and uncertain” and that the metes and bounds of
the county’s school districts should be “defined with certainty”:

It appear|s] to the court that the boundaries of the several school
districts . . . of the County|| are vague and uncertain and that tt is
necessaty that they should be defined with certainty[.|_ And it further
appeat|s|] that the field notes and description of the several school
districts as prepared by [W.H.] Pierce from the Minutes of the
Commussioners Court are correct and should be placed of record in the
Minutes of this Court.[] It 1s therefore ordered by the Court that the
boundaries of the several school districts be and the same are hereby
corrected ....

The order then described the metes and bounds of 91 school districts, including

Roanoke Common School District No. 59, Elizabeth Common School District No.

"Act of Feb. 4, 1884, 18th Leg., 1st C.S., ch. 25, § 30, 1884 Tex. Gen. Laws 38,
44, reprinted in 9 H.P.N. Gammel, The Laws of Texas 1822-1597, at 576 (Austin,
Gammel Book Co. 1898).

Act of Feb. 4, 1884, 18th Leg., 1st C.S., ch. 25, § 29, 1884 Tex. Gen. Laws 38,
43-44, reprinted in 9 H.P.N. Gammel, The Laws of Texas 1822-1897, at 575-76 (Austin,
Gammel Book Co. 1898).

13
58, Walnut Grove Common School District No. 73,’* Helm No. 83. (later
consolidated with several other schools to form Justin Rural High School District),
and Rock Hill No. 90. Each metes-and-bounds description references the Denton
County line.

In July 1909, the Denton County Commissioners Court approved the election
and incorporation of the Roanoke Independent School District. The order of the
commiussionets coutt contains a metes-and-bounds descriptor that places the school
district’s southern boundary on the White line and includes a sketch map of the
Roanoke ISD that denotes that the south line of Denton County is the White line.’

In 1910, the Tarrant County Commissioners Court laid out the metes and
bounds of 93 school districts. Of these school districts, Henrietta No. 4 (which was
later consolidated with Roanoke) and Avondale No. 90 (which was later consolidated
with Haslet Common School District No. 97) became part of Northwest.

Also included among the 93 school districts was Lonesome Dove No. 7. That
district, which was sometimes teferred to as Dove District No. 7, had the following in

its metes-and-bounds description: “Thence West with Denton County line to S. E.

“Roanoke, Elizabeth, and Walnut Grove were later consolidated to form
Roanoke ISD.

Carroll notes that the sketch map does not identify any line on the map as
“the Denton County Line.” But as set forth below, Northwest’s expert Gilley
testified that “[y]ou can clearly tell from this sketch that the line that they show to be
what is referred to as the county line,” and he explained that the county line on the
sketch was in the vicinity of the White line.

14
2

Corner of F. L. Harris Survey.” In 1917, Lonesome Dove No. 7 was consolidated
with several other districts to form Carroll Common School District No. 99.

In 1915, the Tarrant County Commissioners Court laid out the metes and
bounds of Common School District No. 97 (also referred to as Haslet Common
School District No. 97). Its metes-and-bounds description began at “the northeast
corner of the Avondale District No. 90, on a point on the north line of Tarrant
County.”

In 1947, Elizabeth Common School District No. 58, Walnut Grove Common
School District No. 73, and Roanoke Rural High Common School District were
consolidated with Roanoke ISD.

In 1949, the commissioners courts of Tarrant, Denton, and Wise Counties—
following elections ordered by these courts upon presentment of petitions signed by
the requisite voters—created Northwest. The January 1949 order of the
commiussionets courts consolidated Rhome ISD, Justin Rural High School District,
Haslet Common School District No. 97, and Roanoke ISD and tncluded the
following as part of tts metes-and-bounds description of Northwest: “BEGINNING
at the Southeast corner of [W]ise County, same being the South||west corner of
Denton County and on the North Boundary line of Tarrant County.” It later states
“THENCE South to the County Line between Denton and Tarrant Counties.”

[Emphasis added.] Between those two calls are references to land encompassed by

the descriptions of the various predecessor school districts:

15
THENCE Up the channel of said West Fork to the Southeast corner of
1900 acres of land that was transferred from the Rhome School District
to the Boyd School District November 30, 1948],] as shown of record in
Vol 4 Page 262 of the Minutes of the County School Board of Wise
County, Texas[,] SAME BEING A POINT in the Geo. L. Bledsoe
Survey;

THENCE East to the Southwest corner of a 55[-|acre tract 1n said
T & PR R Co. Sutvey that was transferred from the Fairview School
District to the Rhome School District September 7, 1948],] as shown of
record in Vol[.] 4 page 258 of the Minutes of the County School Board
of Wise County, Texas;

THENCE East along the county line between Tarrant and Wise
Counties to the Southwest corner of Denton County being the place of
beginning, containing a total of 126,082 acres of land more or less,
calculated to be 197 square miles, being a consolidat||ion of all the lands
comprising the school districts known prior to this consolidation as the
Justin Rural High School District in Denton County, [t]he Roanoke
Independent School District 1n Denton and Tarrant Counties, the Haslet
Common School District 1n Denton and Tarrant Counties and the
Rhome Independent School District in Wise County, all of said counties
being in the State of Texas, the number of acres from each of said
school districts as follows|:]

School District Actes
JUSTIN 45, 222.
ROANOKE 27,091.
HASLET 35,411.
RHOME 18,358.

126,082 TOTAL ACRES

16
The February 1949'° order consolidated Fairview School District No. 39 with
Northwest. That order included the following as part of its metes-and-bounds
description of Northwest: “BEGINNING at the Southeast corner of Wise County,
same being the Southwest Corner of Denton County and on the North Boundary line
of Tarrant County,” and “THENCE South to fhe County Line between Denton and
Tarrant Counties[.]” [Emphasis added_]

Shortly after the creation of Northwest, from 1949 to 1951 the Texas
Legislature passed various validation statutes pertaining to school districts.'’ The
statutes specifically state that “[t]he boundary lines of any and all such school districts
ate hereby tn all things validated.”

In 1959, some of the inhabitants of Carroll Common School District No. 99
filed a petition to mmcorporate the school district. On March 4, 1959, the County
Judge of Tarrant County ordered an election after finding that the petition was signed

by the requisite number of inhabitants of the school district and that the petition

The Januaty 1949 order and the February 1949 order are referenced jointly
throughout the remainder of the opinion as the 1949 orders.

‘Various sections of the Texas Revised Civil Statutes, not session laws, were
admitted into evidence. See Tex. Rev. Cty. Stat. Ann. art. 2815¢—39, § 1 (enacted in
1949 to validate all school districts in large counties), art. 2815e—40, § 1 (enacted in
1949 to validate the consolidation of independent school districts with other districts),
art. 27420, § 1 (enacted in 1949 to validate common school districts), art. 28159—43,
§ 1 (enacted in 1950 to validate all school districts), art. 2815e—46, § 1 (enacted in
1951 to validate all school districts).

'8 See id. arts. 2815-39, § 1, 27420, § 1, 2815e43, § 1, 2815246, § 1.
g g g

17
“contain[ed| a definite description by metes and bounds of the District proposed to
be incorporated.” Based on the election returns, the County Judge of Tarrant County
ordered that the school district be incorporated and that the name be changed from
Carroll Common School District No. 99 to Carroll Independent School District. The
metes-and-bounds description contained in the petition referred to a point in “the
North line of Tarrant County.”

Shortly after Carroll was created, the Texas Legislature passed mote validation
statutes in 1959 and 1961.” Like the prior validation statutes, these state that “t]he
boundary lines of any and all such school districts are hereby 1n all things validated.””°

Thus, by 1961, both school districts had been created, and the boundary lines
had been validated.

b. Surveys and Retracements of the County Line
The view of where the county line between Tarrant and Denton Counties lies

on the ground has evolved over 150 years. In 1852, the Texas Legislature passed “An

Act better defining the boundaries of Denton County” that provided a metes-and-

"See Act of Feb. 17, 1961, 57th Leg., R.S., ch. 9, §§ 1-6, 1961 Tex. Gen. Laws,
15, 15-18; Act of May 7, 1959, 56th Leg., R.S., ch. 348, §§ 1-5, 1959 Tex. Gen. Laws
767, 767-70.

Act of Feb. 17, 1961, 57th Leg, R.S., ch. 9, § 1, 1961 Tex. Gen. Laws, 15-17;
Act of May 7, 1959, 56th Leg., R.S., ch. 348, § 1, 1959 Tex. Gen. Laws 767-768.

18
bounds description of Denton County.*! After the Act of 1852 was passed, White
was appointed to survey and mark the south line of Denton County. White surveyed
and marked on the ground the Denton County—Tarrant County line (which came to
be known as the White line) from December 1852 to January 1853 and filed his field
notes in the general land office (GLO). White’s field notes on file in the GLO were
the only field notes of any line purporting to be the Denton County—Tarrant County
line at the time of the commissioners courts’ orders creating Northwest in 1949 and
Carroll in 1959.

The White line was accepted as Denton County’s southern boundary line from
1853 until the Tarrant County suit. Prior to that suit, Tarrant County had begun to
question whether the White line was a proper survey of the boundary between it and
Denton County. The various counties impacted by the question entered into an
agreement that was designed to finally resolve the question. This history is set forth
in the Tarrant County opinion as follows:

In 1984[,] the Denton County Commissioners Court tequested

assistance from Dallas and Tarrant Counties regarding the location of

their southern line. That year, Denton and Dallas formed a Bi—County

Line Commission for the purpose of determining whether sufficient

evidence existed to ascertain on the ground the physical location of their

legislatively mandated boundaries. During this process, Denton and

Dallas determined it would be necessary to bring in additional counties
because their boundaries could be impacted also. So, in 1986],] Tarrant,

“Act approved Jan. 24, 1852, 4th Leg, R.S., 1852 Tex. Gen. Laws 32, 32,
reprinted in 3 H.P.N. Gammel, The Laws of Texas 1822-1897, at 910, 910 (Austin,
Gammel Book Co. 1898).

19
Denton, Dallas, and Collin Counties entered into an agreement which
was an expansion of the previously created Bi—County Line
Commission. The expanded agreement states that its purpose is to
ascertain and locate on the ground the northern boundaries of Dallas
and ‘Tarrant Counties and the southern boundaries of Denton and Collin
Counties. ... Pursuant to the Interlocal Cooperation Agreement each of
the four counties hired and retained Don Jackson of Lichliter—Jameson
and Associates to perform the survey and subsequently adopted his
sutvey.

87 S.W.3d at 166.

The surveys conducted pursuant to the Interlocal Cooperation Agreement
determined that White had erred in his determination of the boundaty between
Tarrant and Denton Counties as follows:

Pursuant to the Interlocal Cooperation Agreement, Jackson prepared a
sutvey and field notes locating the boundaries and corners covered by
the agreements and contracts. In May 1987[,] Denton County and the
other three counties approved Jackson’s field notes by county court
otders. Jackson determined that [Warren A.] Ferris [who had surveyed
Dallas County in July 1850], and therefore White, had erroneously
located Dallas County’s northwest corner 2200 feet south and 1300 feet
east of where it should have been, resulting in [a] jog in Dallas County’s
northwest corner and creating two northwest corners for Dallas County.
Therefore, Jackson set Dallas County’s northwest corner and Tarrant
County’s northeast corner at the same point and monumented that
location per the Interlocal Cooperation Agreement.

Id. at 171.

By the time the Tarrant County suit was filed almost 150 years after White
surveyed the county line, the original monumentation of the White line between
Tarrant and Denton Counties had deteriorated due to the passage of time but could

still be found on the ground. As a result, Wilson was appointed by the Tarrant County

20
January 2000 interlocutory judgment to perform a resurvey. In March 2000, Wilson
stated in an affidavit that, while performing his resurvey, he had “found evidence on
the ground|| .. . to confirm the location of survey corners referenced by the original,
and only, on[-|the|-|ground survey of the Denton—Tarrant boundary” and that “[t]he
county boundary referred to [tn the hundreds of deeds that he had examined] is the
historical boundary surveyed by George White in December 1852 - January 1853.”
The outcome of the Tarrant County suit turned not on the historically
recognized county line but on a boundary line correctly surveyed when the resurvey
required by the Interlocal Cooperation Agreement was conducted by Jackson. Id. at
175. We held that “the line located by Jackson that was approved by both [Tarrant
and Denton Counties] 1s the true boundary between these counties.” Id We
remanded the case “to the trial court for entry of a judgment properly adopting the
Jackson survey and for entry of any other orders the trial court deem[ed] appropriate
related to or necessary to any resurveying and remarking of the boundary.” Id. at 180.
On temand, the trial court in the Tarrant County suit appointed Gilley, a
registered professional surveyor and a licensed state land surveyor, to resutvey and
monument the counties’ true boundary line as established by the Interlocal

Cooperation Agreement and Jackson’s survey. See Tex. Loc. Gow’t Code Ann. §

72.004. In 2004, he surveyed and marked what became known as the Gilley line.

21
Cc. Testimony Interpreting “the County Line” Descriptor

The testimony at trial here centered on what was meant by “the County Line”
descriptor in the 1949 orders that created Northwest and the 1959 order that created
Carroll. As explained in detail below, Carroll’s experts, while agreeing with
Northwest’s experts on the rules that govern surveying, disagreed with Northwest’s
experts on the emphasis to be placed on the orders that created the predecessor
school districts and opined that the county line referred to in the 1949 orders is the
Gilley line that came about more than 50 years after Northwest was formed. Cartoll’s
experts’ view gave the county-line descriptor in those orders an inchoate quality that
discounted the term’s reference to the physical line that White had surveyed on the
ground and that was the only line in existence when the boundaries of the various
school districts forming Northwest and Carroll were created. Even though these
ptedecessor school districts were given metes-and-bounds descriptions as a result of a
legislative command to specifically define their boundaries and even though the 1949
commiussionets coutt orders gave a metes-and-bounds description of Northwest,
Carroll’s experts viewed the term “the County Line” as referring to the actual
demarcation between the jurisdictions of Tarrant and Denton Counties that floated
through time and space as subsequent events clarified where that demarcation was

located.

22
(1) Carroll’s Experts
(a) Surveyor James Brittain™

James Brittain, a registered professional land surveyor who testified as an
expert for Carroll, was hired to create a map based on the Tarrant Appraisal District’s
electronic maps and to identify the location and definition of Carroll’s district. He did
not do a retracement of the metes-and-bounds descriptions that were incorporated
into the 1949 or 1959 orders.

In Brittain’s opinion, the descriptor of the Denton County—Tarrant County line
in the 1949 orders creating Northwest at the time of the 1949 election was unknown,
ambiguous, and did not exist. He held the same opinion of the 1959 order creating
Carroll. Brittain opined that none of the drafters—the drafters of the field notes for
the 1949 orders, the drafters of the field notes of Northwest’s predecessor school
districts, the drafter of the Carroll field notes, or the drafter of Carroll’s predecessor
school districts—had any idea where the Denton County—Tarrant County line was.

Northwest’s counsel cross-examined Brittain as follows:

[Y]ou looked at [the 1959 Carroll incorporation petition] and you found

that there were about two dozen petitioners who sought to incorporate

Carroll... , tt being earlier the Common School District Number 99,

and if they said there had been a definite description by metes and
bounds of the Common School District... .

~The record spells his name Britain and Brittain on the same page. Because
Brittain 1s the spelling used in his report, we use that spelling.

23
So here ate people when -- from your perspective everybody
knew that the Tarrant County/Denton County line did not exist, and yet
these folks are writing a description that says it’s definite and it goes
down the county line, did that move your boat at all?

A. That may be what they believe.

Q. Okay. Well, what about the order that the Judge, the Tarrant
County Judge signed that said I find that that petition is definite, the one
that refers to the county line?

A. None of them have any proof of that.

Q. Well, there’s an order that says he said tt was definite[.|

A. Order says what?

Q. The order says that the description attached to the petition is
definite and described by metes and bounds.

A. Well, the petition of 1959 said the Denton/Tarrant County
line, period.

Q. Well, my question to you --

A. It never said White.

Q. So if -- let me go at it a different way.

If the county judge of Tarrant County, who 1s the person who
lives in the county that’s being adversely affected by, from your
perspective, an improper county line, why would he sign an order saying
that the line is definite when it referred to a line that did not exist?

A. Because he doesn’t know any better.

Q. Do you have any evidence of that?

A. No.

24
Q. Okay. Well, what about after the election and the election
gets passed and the Judge finds that the metes and bounds of Carroll. . .
is incorporated, and the metes and bounds are definite, why wouldn’t the
Tarrant County Judge at that time, if he knew it didn’t exist, why would
he allow that to occur?

A. I don’t know.

Q. Well, if everybody knew that the county line didn’t exist, why
would an elected official of Tarrant County whose interests were being
adversely affected, or at least the interest he’s supposed to represent,
were being adversely affected, would allow that to occur?

A. He’s a human being, and he didn’t know any better.

Despite Brittain’s opinion that the county line was indefinite in 1949 and 1959,
he testified that the 1852-1853 White line can be found on the ground by coordinates
and that Wilson’s later survey definitely reconstructed the White line. Yet Brittain
opined at trial that the descriptor in the 1959 order referring to the Denton County—
Tarrant County line was the Gilley line. This opinion contradicted Brittain’s
December 2017 deposition in which he testified that the Denton County—Tarrant
County line that was referred to in the 1959 field notes was not the Gilley line.

(b) Surveyor Dr. Gary Jeffress

Dr. Gary Jeffress, a professional land surveyor who had previously testified on
behalf of Tarrant County in the dispute between the counties, opined that the
common boundary between Northwest and Carroll was the Gilley line, not the White
line:

The reference to the county line between Denton and Tarrant Counties,
and that is in quotes, in the 1949 description does not refer to the White

25
line surveyed in 1852-53, rather it refers to a county line that was
indefinite in 1949. ‘There is no contrary evidence.

Based on the evidence . . . in my report, 1f a prudent land surveyor

is asked to locate the common line between Carroll Independent School

District and Northwest Independent School District, the only location

[that] satisfies the Texas Board of Professional Land Surveying tule on

boundary reconstruction is the location of the fully monumented on-the-

ground sutvey of ‘Tarrant/Denton County line as surveyed by surveyor

Mr. Gary Gilley based on the April 6, 2004 modified and corrected final

judgment in Tarrant County versus Denton County.

According to Dr. Jeffress, the Gilley line is “the only surveyed line of Denton and
Tarrant, the common boundary between Denton and Tarrant County, which satisfies
all three definitions of the counties of Dallas, Tarrant, and Denton . . . as laid down by
the legislature in the Acts that created and redefined those counties.”

Dr. Jeffress admitted that he did not look to see what the law was on the
creation of school districts and that he did not know that the Texas Legislature had
requited school districts to have definite boundary lines in its 1884 Act requiring the
county commissioners to give school districts specific metes-and-bounds descriptions.
Nor had he even looked at the legal documents creating the predecessor school
districts. After being shown the metes-and-bounds description of Carroll in the 1959
order, Dr. Jeffress agreed that the order referred to a description that was definite at
the time of the order, but he disagreed with the order’s description and maintained
that the description is indefinite. When Northwest’s counsel asked Dr. Jeffress to use

the Tarrant County Commissioners Court order of 1910 containing the metes-and-

bounds description of Lonesome Dove Common School District No. 7 (which was

26
consolidated in 1917 with Carroll Common School District No. 99 and later into
Carroll ISD) and to trace the description on the map Brittain had created, he agreed
that Carroll’s boundary could not be the Gilley line.

Dr. Jeffress also acknowledged that Northwest’s legal description of its
boundaries in the 1949 commissioners court orders is the senior description and that
Carroll’s description in the 1959 commissioners court order is the junior description,
and in the case of a conflict, the senior tract—Northwest—would prevail. Dr.
Jeffress agreed that in determining Northwest’s boundaries as they existed in 1949, he,
as a sutveyor, could not consider documents that were prepared after that 1949
description because, to do so, he would not be following in the footsteps of the
original surveyor, who would not have had access to those documents. Dr. Jeffress
further agreed that the Gilley line was not surveyed, marked on the ground, or filed
until 2004 and therefore could not have been considered by the 1949 drafters.

Dr. Jeffress acknowledged that White’s field notes were on file with the GLO
im 1901, 1910, 1947, 1949, and 1959—the dates of the commissioners court orders
creating all of the predecessor school districts, Northwest, and Carroll. Dr. Jeffress
agreed that the drafter who wrote the descriptions for Northwest and Carroll had
notice of White’s line and that the result of White’s filing of his field notes with the
GLO was to establish on the ground the Denton County—Tarrant County line back
then. Dr. Jeffress also agreed that White’s field notes were the only field notes of any

line purporting to be the Denton County—Tarrant County line in 1949.

27
Yet, Dr. Jeffress opined at trial that White’s field notes were not correct and
that it was very unlikely that White’s monuments or settings still existed in 1949.
Northwest’s counsel pointed out that during Dr. Jeffress’s deposition, he had been
asked whether monuments erode or disappear over time, and he answered,
“Especially the ones that were put down by Mr. Surveyor White when he defined the
White line.” But Dr. Jeffress had also agreed during his deposition that there was a
possibility that those monuments or settings did exist 1n 1949 but that he was not able
to locate them 50 years later when he and Gilley went to look for them.

Dr. Jeffress testified that he did not believe that the legal descriptions in both
Northwest’s and Carroll’s orders evidenced the intention of the commissioners courts
to refer to the then-existing line on the ground. During his deposition, however, Dr.
Jeffress had answered “yes” when Northwest’s counsel asked 1f he would agree that
the legal descriptions of the boundaries in Northwest’s and Carroll’s call notes
evidenced the intention of the commissioners courts “with relation to what was
known to be the existing],] on|-|the[-|ground boundaries.”

Dr. Jeffress testified at trial that as a surveyor, he had to presume that the
White line located the boundary unless the reverse could be shown. Northwest’s
counsel then asked, “And you can’t prove the reverse is true in this case, can you?”
Dr. Jeffress responded, “I can prove that it does not comply with the [1852] Act.”
During his deposition, however, when Dr. Jeffress was asked whether he had proved

that White did not locate that land, he answered, “No, I cannot prove -- cannot prove

28
the reverse.” Dr. Jeffress further testified at his deposition that he had to assume that
White had “made the survey where he [had] put it.”

Dr. Jeffress equivocated on whether Wilson had retraced White’s line. Dr.
Jeffress initially agreed that Wilson had sufficiently located White’s line on the ground
in 2000 but then testified on redirect that tt was not possible for Wilson to have
located the White line in the same location as described 1n White’s field notes and
that, in his opinion, it would have been tmpossible to get to that exact line due to “the
discrepancies that Wilson [had] found between the connections to the original surveys
and his passing calls.” But Dr. Jeffress ultimately testified on re-cross, re-redirect, and
further re-cross that Wilson had sufficiently located White’s line on the ground, that
Wilson’s line was sufficient for a “historic retracement of the White line,” and that
Wailson had located the original White line within the precision required by the Texas
Board of Professional Land Surveying.

(2) Northwest’s Experts
(a) Garey Gilley

As mentioned above, Gilley served as Northwest’s primary expert and testified
over the span of two days. Because he had surveyed the Gilley line in Tarrant County
but was testifying in defense of the White line here, he provided the lion’s share of the
experts’ testimony in response to a wide range of questions. To accommodate the
volume of Gilley’s testimony, we have summarized the relevant portions and have

broken down that summary into various topics. Though Gilley’s testimony is

29
voluminous, the essence of his testtmony was that the descriptor “the County Line” in
the 1949 orders was not an inchoate description of some floating line that marked the
demarcation between Tarrant and Denton Counties’ jurisdiction. Rather, according
to Gilley, the term was a tefrence to the only line marked on the ground that existed
when the boundaries of the school districts from which Northwest and Carroll were
formed were defined as required by the Legislature and when the 1949 commissioners
court orders described by metes and bounds the boundaries of Northwest, the new

district that combined the previously described districts.

Explanation of why the Gilley line 1s not the common boundary and how Tarrant
County differs

Gilley began by stating, “I’m taking the position that in 1949 the so-called
Gilley line was not in existence, and so therefore cannot be considered in
reconstructing the boundary of Northwest.” Gilley then explained how this case
differs from the Tarrant County case:

Q. So ate your opinions that you ate going to give in this case today

inconsistent with the opinions and the work that you did in the Tarrant

County/Denton County case?

A. No, sit.
Q. Then why is tt that your testtmony in the Tarrant

County/Denton County case 1s not inconsistent ot contradictory with

the testimony and reports and affidavits you have given in this case?

A. Well, to try to say it in my terms, ... the two cases that we’re

working on or the situations that we have, first [Tarrant County v. Denton
County|, that was a case that had to decide where was the true boundary

30
line between Tarrant and Denton County, and it had many, many factors
that had to be considered.

... And the Court had to sort all of that out, and the Court was
asked to determine where was the true line between the two counties.

In this case, even though we keep referring to a county line, it’s
really not about the county line. It is about a line that 1s described in a
description, described in a certain piece of real estate that is referred to
as the county line, but the question 1s what line was it that was referred
to as the county line.

The county line really has nothing to do with that description, so

there are two separate cases, and they're quite frankly to me they’re
apples and oranges|;| they don’t even intermingle with each other.

Gilley’s_ examination of the 1949 orders and the orders creating the predecessor
school districts

Gilley testified that he was hired in this case to opine regarding whether the
boundary description for Northwest was sufficient and contained enough information
to enable a competent surveyor, using ordinary survey means and methods, to locate
that description and mark it on the ground with reasonable certainty. Gilley explained
the process that he had used in forming his opinion:

Well, again, the way you approach any land surveying issue, the first

thing, of course, that I looked at was the order in 1949, the document

[that] created Northwest Independent School District.

And there [were] two or three things within that document. First

of all, the document told me that Northwest was being formed as a

consolidation of existing school districts[,| and then that document went

on and gave a written description of the limits of the school district.

And the description that 1s contained within that document 1s

ptimarily what we would refer to as a bounds description. In other
words, it describes various boundaries which make up the whole[.]

31
Gilley testified that the 1949 orders’ descriptor that refers to the county line between
Denton County and Tarrant County 1s not ambiguous. He explained that “a bounds
description cannot be ambiguous from the standpoint you are calling it for the
boundaries, and so whatever it calls for, that description 1s going to follow that call
adjoiner. So the fact that 1t doesn’t have any calls for course or distance pretty well
eliminates any ambiguities.” In other words, according to Gilley, because the
boundary description 1s meant to describe a line in existence, 1t cannot be ambiguous.
Gilley testified that the work he did tn this case constituted a boundary
retracement. Gilley testified that it was “very necessary” 1n a boundary retracement
analysis to review the field notes of Justin Rural High School, Roanoke ISD, Haslet
Common School District No. 97, and Rhome ISD and their predecessors to
determine the location of the descriptor referring to the Denton County—Tarrant
County line in the 1949 orders. Gilley said that the 1959 order incorporating Carroll
Common School District No. 99 into Carroll ISD very clearly stated that the north
line of Carroll 1s the south line of Northwest. He explained that this was tmportant to
him because his proper retracing of the limits of Northwest automatically located the
north line of Carroll due to the order’s wording clearly stating that Carroll’s north line
is the south line of Northwest, the senior school district. Gulley said that Northwest

was not the senior school district simply because it was created earlier than Carroll but

32
because the Carroll order specifically referenced Northwest’s existing boundary line.
Gilley explained that field notes played an important role in his retracement analysis:

When I looked at the order for Northwest ISD, within that order and in
the bounds description, . . . there [was] more than one occasion that the
call in the description 1s [a] call[] to go to the county line. It doesn’t give
me a distance to travel. It just says from wherever point I might be at
the time, I go either north o[r] south until I reach the county line.

Now, that description was written in 1949, so I have to put myself
in place in 1949. So tt was very easy in 1949, what was the county line.
So a vety quick review of the records that, of course we have done
pteviously, but we did it again, was .. . that the only line that had
purported to have been surveyed, marked on the ground, and his field
notes were written and placed in a file in Tarrant County/Denton
County and the general land office was the line that was surveyed by
Surveyor George White in 1852 or 1853.

So... sitting in the chair of the descriptors 1n 1949, it told me
that was the line that they would call for, that was the county line. But I
also felt like that that would be kind of a leap of faith, it would be a

quick assumption.

Was there some way that I could go back in the chain of evidence,
and the chain of evidence would be the descriptions that were utilized in
the original creation or in the creation of the original school districts, so
that took me back to the 1901 court order by the Denton County
commissioners where they defined all of their school districts, and it
later took me to the 1910 court order by Tarrant County, when they
defined their school districts.

So by reviewing those descriptions, I found evidence that clearly
pointed to the line that was called for in the Northwest description was
the county line as surveyed by George White.
Gilley said that he gave great weight to the descriptors in the orders creating

the predecessor school districts. Gulley disagreed with Dr. Jeffress’s statement that

there was no need to consider the earlier documents because they have no bearing on

33
the call to the county line. Gilley explained that the earlier documents ate part of a
chain of evidence and that completing a boundary retracement is like putting together
a 500-piece jigsaw puzzle in which every piece has to fit, so “sometimes you have to
go over here to these earlier descriptions and piece together part of it.” Gilley said
that is imperative to go back to look at the foundation of the description to see what
it was based on. But Gilley did not consider anything that occurred after 1949
because “whoever prepared that description [of Northwest] totally would have been

unaware of it.”

Gilley locates the White line on the ground and determines that it syncs with the

metes-and-bounds descriptions of the predecessor school districts

Gilley testified that he had been able to find the White line on the ground
“within sutveying tules, principles],] and guidelines.”*? Gilley reiterated that the line
called for in the 1949 orders creating Northwest is the line that was surveyed and
marked on the ground by White.

Gilley testified that during his boundary retracement, he found evidence in the
records that supports his opinion that locates the descriptor at the Denton County—
Tarrant County line in the 1949 consolidation order. Gilley looked at 17.5 miles of

the Denton County—Tarrant County line, including between Carroll and Northwest,

Gilley testified that because he could locate the White line with reasonable
certainty, he had no reason to look at the taxing line. Gilley further explained that
because the taxing line referred to by the parties only came into existence in 1981
when the Tarrant Appraisal District was formed, “it’s hard to draw any conclusions as
to whether or not the 1949 description was referring to the taxing line.”

34
and he found five points along the White line that he believed were supported by the
documents.™* Using the descriptions of the early school districts (Haslet, Roanoke,
and Walnut Grove) from the Denton County Commissioners Court’s 1901 order,
Gilley explained how those descriptions point to the White line as describing a line on
the ground that marked the county line between Denton County and Tarrant County
under the 1949 order:

Well, just quickly, reiterate the common corner, the southwest corner of
Denton County where the two lines are together. There is a connection
in the Haslet ISD at the Greenberry Overton survey, there’s a
comnection to the T&P survey, and there’s a connection from the
McDonald survey all going to what they call the county line.

And then when we get over to the Roanoke ISD orders, the --
they call again at the corner of the previous school district, which puts
them together at that point.

And then here at the -- at Roanoke, it calls to be at the southeast
corner of District Number 58, which places it at the northwest corner at
this point, and we'll come back up to this a little bit.

But in the description of this school district 1t clearly poimts out
that the southwest corner of this school district is the southwest corner
of a particular land grant at this location.

And then coming on to the east, the -- all three of these school
districts are all clearly within Denton County, so they all come to the
county line and do not extend over into Tarrant County.

And then all the way in through Walnut Grove, which is [the] east
part of Northwest. And what’s significant about Walnut Grove is where

“Gilley explained that only two points are necessaty to attain reasonable
certainty about the location of a line.

35
they are n common with... Northwest ISD. The language is exactly
the same tn both descriptions.>

Gilley interpreted the 1901 order® “to say that all the previous descriptions
have discrepancies, and we are correcting those descriptions with these descriptions.”
Gilley then concluded, “And so unless I find evidence to the contrary, I would look
upon these descriptions as the original or give them the same value as the original.”
Moreover, Gilley explained that the 1901 order’s field notes make reference to a land
area:

[E]ach of these descriptions, after they describe the particular piece of

real estate they’re describing, either at the beginning or the end of the

description, states how many acres ate embraced within that description.

School District Number 1 containing 12,844.35 acres of land.

You cannot determine a land area that is embraced within a description

without having a closed boundary. So either these descriptions have got

to form some type of a closed boundary, whether that’s closed

mathematically or closed by plotting or any other features|;] there can’t

be one leg left off, i[f] you will. Its got to be completely enclosed.

Otherwise, you cannot compute a land area.

Gilley agreed that the field notes for each of the three school districts—

Elizabeth, Walnut Grove, and Roanoke—show up in the 1949 orders that created

Gilley testified that he also found more evidence in a private land transaction
in which W.F. Anderson sold two tracts of land to the United States for construction
of Lake Grapevine. Because one tract was solely within Denton County and the other
tract was solely within Tarrant County, Gilley concluded that “the common line
between these properties ha[s] got to be the county line, ... as they recognized it to
be.” However, this land transaction occurred ten or eleven months after the 1949
Northwest election to consolidate.

*°Gilley read aloud the relevant portion of the 1901 order, which 1s set forth
above in Section IJ.C.2.a. that describes the creation of the school districts.

36
Northwest. Gilley further agreed that the field notes that extend the Walnut Grove
school district to the Denton County line do the same in the 1949 orders. Gilley
explained that this field notes’ repetition shows “consistency from the original
creation of the school districts up to the consolidation.” Later in his testimony, Gilley
testified that “every one of these descriptions that call for the county line are calling
for the same line.”

Gilley testified that the 1909 order creating Roanoke ISD had a sketch attached
to 1t that included the original land grants. Gilley explained the significance of one of
the land grants, the R.M. Sneed land grant:

[Y]ou can clearly tell from this sketch that the line that they show to be

what 1s referred to as the county line, appears to be traversing along the

south line of the R. M. Sneed survey, and of course the Sneed [survey] 1s

the original land grant, which can [be] and has been located on the

ground.

Gilley explained that the Denton County line on the sketch is in the vicinity of the
White line. Gilley said that the sketch was done tn 1887 by Surveyor Biggerstaff, who
was the county surveyor for Denton County, and that “[t]hese are his field notes.”
Gilley explained that on Biggerstaff’s sketch, “he’s showing what he has referenced as
the line between Denton and Tarrant Counties, and that’s indicated on that dashed
line.” Gulley testified that in 1887, Biggerstaff wrote a letter, 1n which “he would have

been addressing this to the record,” and certified that

the above plat 1s a true representation of the survey shown thereon,
as [| found... by actual measurements on the ground.

37
The dotted line represents the line between Denton and Tarrant
Counties, and is the north boundary line of section number one,
MEP&P Railroad Company survey in Tarrant County, and calls for a
distance of 924 varas.

... The distance of 924 varas on its north boundary line from the
west boundary line of the Cuella and east boundary line of the Perry
Section 95, and what he goes on to say 1s he actually measured 930 varas,

and he talks about that difference in measurement.

So in this letter, [Biggerstaff] is, again, certifying .. . the county
line.

When asked whether Biggerstaff's map shows that the line between Denton County
and Tarrant County is indefinite, Gilley answered, “No, sit.”

With regard to the metes-and-bounds description creating Haslet Common
School District No. 97, Gilley testified that the metes-and-bounds description
contains three calls that were “definitely certain coming to the Wilson line.”?’ Gilley
testified that the calls did not go anywhere near the Gilley line.

With regard to Lonesome Dove No. 7 (which became part of Carroll), Gilley
took the field notes, plotted them, drew a configuration, and followed them.
According to Gilley, this process provided him with significant insight into the
location of the county line:

[T]his one 1s the first time we have [an] absolute definite location for the

county line in relation to the original land grants. These descriptions

were written, and what is significant in this one to me is if you follow
this description down to here, and Pll start reading at this point: Thence

"Gilley testified that he used the Wilson line and the White line as
interchangeable.

38
east to the southeast corner of the Whitman survey, which is southeast

corner of the Whitman survey is right here. Thence north to Denton

County line. So thence north and it says to go until you get to the

county line and then stop.
Gilley explained that the Lonesome Dove field notes did not give a distance call but
that it gave him “the next best thing|| because the next call says thence west with the
Denton County line to the southeast corner of the F. L. Harris survey.” Gilley further
explained that “the southeast corner of the F. L. Harris survey can only be one place.
And once you’ve located the southeast corner of the Harris survey, you’ve located the
county line that is called for in this desctiption.”* Gilley said that call provided
enough certainty for him to place the county-line reference on the Wilson line.
Gilley rebuts and criticizes Brittain’s statements

Gilley rebutted the conclusion in Brittain’s expert report that “the county
boundary between Tarrant and Denton County was not sufficiently definite until [he]
fully monumented his sutvey of the Tarrant and Denton County line in 2004-2005.”
Gilley disagreed that the line was previously not sufficiently definite; he said that it

could be plotted using White’s field notes:

[I]f you take the George White field notes, you can actually plot those
field notes very easily|] because George White gives references to

Regarding his references to corners, Gilley testified,

[T]hose were corners which I have determined the location of based on
a combination of on-the-ground surveying and record research. And
so... when I get a call that identifies that survey corner as being on a
county line, I know where that survey corner is, because I have
established it on the ground.

39
original survey corners|;] and ... then towards the west end, he gives
reference bearings back to Blue Mound, and he gives three bearings to
Blue Mound.

And by plotting those three bearings from the distance apart that
he calls them to be, and you put those on Blue Mound, that puts the line
where it should be on the map. So to my way of thinking, the line was
sufficiently described.
Brittain’s expert report also included the following statement with which Gilley
disagreed:
[T]he only location of the common line between Carroll ISD and
Northwest ISD, which satisfies the Texas Board of Professional Land
Survey Rules on boundary and construction 1s the fully monumented on-
the-ground survey of the Tarrant /Denton County line as surveyed by
Garey Gilley based upon the April 6, 2004 modified and corrected final
judgment in Tarrant County v. Denton County.
Gilley rebutted that statement by explaining that the rules of the Board were not
adopted until 1980, so he did not know what that would have to do with the line that
was sutveyed in 1852-1853 by White. Gilley further stated that the rules had no
applicability in 1949.
Gilley rebuts and criticizes Dr. Jeffress’s opinion
Gilley also rebutted Dr. Jefftess’s expert report and his testimony. In Dr.
Jeffress’s “Report on the common boundary line between Carroll ISD and Northwest
ISD,” he stated that
the one and only adjudicated and recognized original survey of the
county line between Tarrant and Denton County in compliance with

their statutory definitions, was surveyed and monumented on the ground
by Mr. Surveyor Garey Gilley on April 6, 2004 modified and corrected

40
final judgment, in [C]ause Number 44051 Tarrant County v. Denton County,
43rd District Court 1n Parker County.

Gilley rebutted this statement, explaining that it posed the same issue as Brittain’s
statement above in that Dr. Jeffress was trying to apply rules that were not in place in
1949.

In his report, Dr. Jeffress also referenced Wilson’s work as an “attempted
retracement of the White” line. Gilley took issue with Dr. Jeffress’s categorization of
Wilson’s work as merely an “attempted retracement” of the White line, noting that
“t]he Wilson survey was certainly a retracement of the White line.”

Gilley also disagreed with Dr. Jeffress’s conclusion that the White line cannot
be the line referred to in the 1949 order and stated, “I think it can be the only line
referred to in the *49 order.”

Gilley also took issue with the statement in Dr. Jeffress’s report that the
location of the White line was never marked on the ground. Gilley explained that he
had found evidence to the contrary:

There is actually no evidence whatsoever to indicate that the George

White line was never marked on the ground. In fact, we have a lot of

evidence confirming that 1t was marked on the ground.

And also [we’re talking] about descriptions that were prepared in

1949. I have no way of knowing, nor does anybody in this courtroom

have any way of knowing what was in place in 1949.

The George White monuments could have very well still been
there. We know they were not there in [1997-1998 when] Dr. Jeffress

and I [were] out there on the ground together|| because we looked and
we never found any, but we don’t know that they [weren’t] there the

41
week before. We just know they weren’t there when we looked for
them.

Gilley explained that when a surveyor certifies that he has set or marked corners,
other surveyors ate to assume that those statements are true without evidence to the
contrary. Gilley said that “if Surveyor White said that he [had] built those earth
mounds and [had] placed a flat rock on top of them, we are to assume that he built
those earth mounds and put a rock on top of them until we have evidence otherwise.
And we have seen no evidence that would indicate that he did not do that.” Gilley
agreed that Dr. Jeffress’s statement—that when they were searching for the original
monument set during the 1997-1998 time frame, they found no marks set by White—
was basically true. But Gilley noted that Dr. Jeffress had failed to mention that Gilley
had pointed out several monuments that marked corners that were referenced in
White’s field notes. Gilley clarified, “We just didn’t find any of the mile posts or
mounds that w[ere] established by White.”

With regard to the statement in Dr. Jeffress’s report—that “had the County
Commissioners, in 1949, recognized the White line as the ‘Tarrant/Denton [C]ounty
line[,| they could have described the line ‘as established by Mr. Surveyor George
White in 1853”’—Gilley explained that “we don’t know what was in the minds of the
commissioners, why they did or did not call for the George White line. They called
for the county line. And in 1949, the only county line of record was the George

White line.”

42
Gilley agreed with Dr. Jeffress’s statement that “land surveyors are required to
place themselves as nearly as possible in the seats which were occupied by the parties
at the time an instrument was executed” and further specified that they had to put
themselves “in the seats of the describers in 1949.”

Gilley also disagreed with Dr. Jeffress’s testimony 1n which he concluded that
“Itlhe reference to the county line between Denton and Tarrant Counties in the 1949
description does not refer to the White line surveyed 1n 1852 or 1853, so it refers to a
county line that was indefinite in 1949[;] there is no contrary evidence.” Gilley
explained that it was true that the line between Denton and Tarrant County 1n the
1949 orders did not specifically refer to the White line, nor did it specifically refer to
the Gilley line @vhich was not yet in existence). Gilley stated that there was evidence
contrary to the notion that the line was indefinite, as indicated by the predecessor
school districts’ descriptions.

Gilley further disagreed with Dr. Jeffress’s conclusion that because only
White’s field notes were on file at the time that the school districts were formed, the
common boundary was the Gilley line as determined by the 2004 modified and
corrected final judgment in the Tarrant County case:

[I]f a prudent land surveyor were asked to locate the common line

between Carroll ISD and Northwest ISD at any time prior to 2004, that

same prudent land surveyor would locate the line along the only line

which purported to be the county line at that time, which had been

sutveyed and monumented on the ground in 1852, and which the
sutveyor’s field notes by George White were on file.

43
So any time prior to 2004 if you were asked to locate that line, the
only set of field notes that were on file and on record was the [set of
field notes by| George White.
Gilley Rebuts Defense’s Rebuttal Witness
During Gilley’s testimony, he responded to various statements contained in the
second rebuttal report prepared by surveyor Kenneth George Gold who served as
Carroll’s rebuttal expert. Because Gold did not testify during Carroll’s case in chief,

Gilley read portions of Gold’s report aloud for the record and then responded to

what he had read.

e Gilley criticized the following passage in Gold’s report:

Having been on the ground and viewed selected portions of the W. C.
Wilson alleged retracement of the Geo. White survey of 1852-3 and
various witness reports, one thing is most clear to me as a surveyor, the
districts’ locative boundary descriptions are flawed, incomplete|,| and

most likely ambiguous. However, with that said, they have made their
intention Clear; their boundaries abut their specifically called-for county

line.

Gilley took exception to Gold’s referring to the Wilson retracement as an
“alleged retracement” because Gilley believed that Wilson did retrace it. With
regard to Gold’s statement that the boundary descriptions “are flawed,
incomplete|,] and most likely ambiguous,” Gilley noted that Gold did not “give
a single piece of evidence as to what he [had] based that conclusion on.” Gilley

concluded that the descriptions were not flawed, incomplete, or ambiguous

because they contained sufficient information to be located on the ground.

44
Gilley took issue with the following hypothetical question that Gold posed in
his second rebuttal report: “[H]ow long could an unmaimtained, mimimally
marked survey line remain recognizable in the wind|-|blown, rain|-|washed,
scorching, freezing North Texas weather?” Gilley observed that “once again
Surveyor Gold only asks a hypothetical question as rebuttal. He offer[ed] no
evidence that the marked and visible boundary was not as the writers describe
it to be.”

Gilley agreed with Gold’s statement that metes-and-bounds descriptions should
form a closed mathematical or plottable figure, but Gilley noted that Gold did
not explain how the school districts’ descriptions did not form a closed
mathematical or plottable figure when several, if not all, of the descriptions
recited a land area within the district to be formed. Gilley further explained
that the land area within the description could not have been determined if the

sctiveners did not have either a mathematical or a plottable figure.

Gilley disagreed with the following statement that Gold made in his second
rebuttal report:

Therefore, there remains the problem of [Northwest’s] clinging to its
boundary description, claiming to a county ine boundary that never was

permanently marked, maintained, apparent, official, or a recognized county
line (via Tarrant Co. v Denton Co., 87 S.W.3d 159, 166 (Tex. App.—Fort
Worth 2002).

45
Gilley explained that Gold had failed to provide any evidence that the Denton
County—Tarrant County line dividing the school districts was never

permanently marked, maintained, apparent, official, or recognized.

Gold went on to state that the location of the White line had “long-become
indefinite.” Gulley pointed out that Gold’s statement was made without any

foundation as to when or how the line had become indefinite.

Gold stated that Gilley, in his August 25, 2017 report, had acknowledged
mistakes in the school districts’ descriptions “but seem [ed] to minimize, if not
ignore their effect.” Gulley refuted Gold’s conclusion that a silent record was
indicative of a “mustake”:

[Gold] somehow tmplies that the absence of the dimensions are
somehow a mistake. I don’t recognize those as mistakes within the
description. I think they were intentionally left off to eliminate any

possibility of ambiguity, so my only comment is the fact that I don’t
acknowledge that there are mistakes 1n those descriptions.

Gold’s rebuttal report also questioned Gilley’s reliance on a call to the county
line in the F.L. Harris survey:

Another concern 1s that in his last paragraph Mr. Gilley seems to believe
that by calling for the closing course to the county line “ . . thence west
with Denton County ine to SE corner of F. L. Harris survey.” He goes on to
say, “This call clearly places the south line of Denton County at the
southeast corner of the F. L. Harris Survey.”

Perhaps this may be a clue to the county line|’]s location, but the
credibility of one deed scrivener hardly warrants such trust.

46
Gilley interpreted Gold’s statement as referencing the call in the Lonesome
Dove’s field notes that said to go along the county line to the southeast corner
of the F. L. Harris survey. Gilley responded to Gold’s observation by noting
that Gold had downplayed the importance of that call when he made reference
to this being a call of one scrivener. Gilley explained, “It’s not a matter of a call
of one scrtvener|;] that’s what the record indicates. The record of those field
notes indicate that the county line 1s at the southeast corner of the F. L. Harris
sutvey.” Gilley retterated that in the absence of evidence to the contrary, the
sutveyots were to assume that any statement made by a surveyor was a true

statement.

Gold was concerned that White’s field notes that were on file with the GLO
wete copies made by the County Clerk without notation of any known GLO
acceptance ot why only a copy was submitted with no comments regarding the
unusual circumstance. Gilley explained that most documents on file with the
GLO are certified to be exact copies of the originals and that White’s field
notes on file with the GLO are certified to be exact copies. Gilley explained
that the only difference between White’s field notes and Gilley’s field notes that
were on file for the Tarrant County case was how the copies were made; in 1852,
those copies were made by handwritten transcription while in 2004, the field

notes were scanned or copied by machine.

AT
e Gold’s report further stated that Gilley had failed to resolve the problems
inherent in the school districts’ descriptions and had ignored that they could be
resolved by the Gilley line:

Of the many meticulous detailed explanations, examples, history|,| and

supports regarding the badly flawed ISD descriptions, Mr. Gilley has
offered nothing resohing the cote problem of the description-courses that

are missing bearings and/or distance calls. However, when the solution

is now offered right before our eyes by an adjudicated, marked county

line[], Mr. Gilley continues [to] hope to resurrect the long-lost line by

insisting, with time and financial support, the 1852-3 Geo. White survey

can be restored.

Gilley first responded that his role as a surveyor was not to seek a solution to a

ptoblem but to determine what the facts are; he said that others take those

facts and try to reach a solution to the problem. Gilley further responded that

he had no hope of resurrecting the White line and did not need for it to be

sutveyed because that line had been retraced and resurveyed by Wilson.
Carroll’s cross-examination of Gilley

Most of the questions during Carroll’s cross-examination of Gilley were geared
toward having Gilley agree that there was uncertainty over where the “true county
line” was located from the 1800s forward. Gilley acknowledged that there was some
uncertainty with regard to the location of the true county line but repeatedly
distinguished the true county line—the boundary between the counties—from the school

districts’ common boundary that was described as the county line in the 1949 orders

creating Northwest. Gilley explained, “I don’t think the White line was ever the true

48
and proper line separating Denton [County] from Tarrant County.” That did not,
however, change Gilley’s opinion that the White line was the school districts’
common boundary:

I think the record indicates that it’s clear as to what county line was

being referred to in the school district descriptions|;] even though it may

not have been a true, proper, ot legal or whatever county line, I think the

record of the descriptions of the early school districts clearly indicate

that it was at or neat the George White line.

Gilley reiterated his opinion that the White line formed the school districts’ common
boundary:

[A]s a land surveyor, I believe there is sufficient evidence to indicate that

the school district line as described in the 1949 orders whete it referred

to [the] county line 1s the George White line. So my opinion as a

sutveyor is that the true line between the two school districts is the

county line that was surveyed by George White.

Gilley said that in reaching his opinion, he was not inferring the intent of the
people who wrote the 1949 order. Instead, he had interpreted their intent from the
field notes, the document that created the Haslet Common School District No. 97
(which later became a part of Northwest), the document and its accompanying sketch
that created Roanoke ISD (which later became part of Northwest), and the field notes
and description of Lonesome Dove (which later became partially tncorporated into
Carroll). Gilley said that all of those documents contain what he considered
“absolutely sufficient evidence to indicate that the county line as referred to in those

descriptions is the George White line.” Gilley explained that even though the

descriptions make reference to “the County Line,” as a surveyor who was trying to

49
interpret those descriptions in order to place them on the ground, he had to
understand and determine what line the description referred to as the county line. He
had to look at what the wording of the document intended based on history. That
history included

the 1949 commissioner|]s court order that clearly says they were creating

Northwest, [and that] consolidated previously existing school districts.

Since that document referred to the previously created school districts,

that gave me the green light, 1f you will, to go look at how those school

districts were created, because, again, it’s just like everything else, when

you make reference to a previous document, you incorporate all terms

and conditions in that document into your document.

So when I go back tn history, back in the chain of evidence 1s

when I find a more defintttve definition of a county line in the Haslet

and Roanoke and Lonesome Dove descriptions.
Gilley reiterated that the history he had examined had brought him back to the White
line:

[T]he documents indicate that the school district line should be located

along the George White line, which he had surveyed and purported to be

the county line, even though we can argue whether or not it was the true

line or not, but. . . it was the only set of field notes, the only surveyed

line that was on the ground in 1949 that purported to be the county line.
Gilley said that he did not have to be clairvoyant to know what the commissioners
courts intended because the earlier descriptions of the school districts “very clearly
indicate that the line they w[ere] making reference to was the George White line.”
Gilley said that historic boundaries “very seldom” identify a boundary by name, such

as the White line. Gulley explained that in “looking back at many old descriptions|,]

when you see a call that says, “Thence to the county line,’ in that document, the

50)
document is expressing there was only one county line, and that 1t was clear to the
whole world as to what the intent of the document would be.”
Redirect examination
On redirect, Gilley explained that the description of the school districts 1s in a
category known as “descriptions prepared for political subdivisions, where [the
sutveyor was| writing a description that embraces a large area such as . . . a school
district line.” Gilley said that those descriptions very often do not include any
distances but instead “might call to go west to the east line of Highway 35W, north
along the east line of 35W, to the south line of Heritage Parkway, and east along the
south line.” Gilley testified that the descriptions are written that way because that
description can be located on the ground, if necessary,
but it’s not practical to do a survey on the ground in order to write that
description. So I take it that 1s what is happening in these school
districts where the people who are drafting these . . . descriptions, are
drafting them without the benefit of an on-the-ground survey, and
they’re clearly making a call that cannot be ambiguous to any other call.
Gilley reiterated that 1n interpreting Northwest’s metes-and-bounds description, he
could not consider anything that had occurred after the date of the documents in
1949. However, he could and did review documents that preceded the 1949
documents that were within the chain of evidence, which led him to conclude that

what was teferred to as the county line in the school districts’ boundaries was the

White line. Gilley testified that he was “more convinced than ever that when these

51
descriptions call to go to the county line, they were calling to go to the George White
line.”
(b) Carr Ben Thomson

Carr Ben Thomson, a land surveyor and engineer who worked at the GLO
during the Tarrant County case, testified that the only county line that was located on
the ground in 1949 and 1959 was the White line and that White’s field notes were on
file at the GLO. Thomson agreed that the White line was marked on the ground
originally and that the original marks have disappeared, but said that there were two
points that he could use to ascertain with reasonable certainty the location of the
White line. Thomson also agreed that Wilson, who had used the ties to still-existing
ptoperties and natural monuments, had probably recreated very closely the position of
the White line on the ground.

Thomson reviewed the expert reports submitted by Brittain and Dr. Jeffress
and then wrote a report rebutting them. Thomson took issue with the statement in
Dr. Jefftess’s expert report that the White line was never marked on the ground.
Thomson believed that the line had at one point been marked on the ground because
(1) White said that it had been, and (2) other surveyors had used White’s corners.
Thomson disagreed with the following statement in Brittain’s expert report:
“Therefore, the only location of the common line between Carroll ISD and
Northwest ISD [that] satisfies the Texas Board of Professional Land Surveying tule

on boundary construction is the fully monumented on-the-ground survey of the

52
Tarrant/Denton County line as surveyed by Garey Gilley based on the April 6th, 2004
modified and corrected final judgment in [the Tarrant County case].” ‘Thomson
explained that (1) the rules that Brittain referenced were not in effect in 1949 or in
1959 and (2) he could not look at documents—like the 2004 judgment—that were not
in existence in 1949 or 1959.”

Thomson gave his opinion on the school districts’ common boundary,
explaining that because the only county line that had been marked on the ground and
recognized by the general public was the White line, it was the only county line that
could have been referred to in the order creating Northwest: “[T]herefore, I think
that it is the line between the two school districts, the George White line.”

(3) Carroll’s Rebuttal Expert - Gold

Gold testified as Carroll’s rebuttal expert and critiqued White’s field notes and

his survey. Gold found it interesting that the county clerk had not only copied

White’s field notes but had also certified that they were true copies of his notes even

“Thomson provided an example of how the interpretation of the boundary
description could change if present-day information were used instead of information
available at the time the description was made. When asked about the portion of the
Carroll description that mentions that the border 1s along Highway 121, Thomson
testified that no portion of Highway 121 touches Carroll’s boundaries today according
to the “Texas School District Locator” map that Carroll admitted into evidence.
Thomson explained that today Highway 121 is not located in the same place where it
was located in 1959 when Carroll’s field notes were written; instead, Highway 121 1s
about three miles further east. Thomson said that if he were given these field notes in
1959 and asked to trace Carroll’s boundaries, he would go to the location of Highway
121 as it “was called to be 1n 1959 because that is where it was, and that’s what the
description calls for.”

53
though it appeared to Gold that some of the things on White’s field notes had not
been written by White. Gold said that many surveyors were concerned about White’s
beginning point. Gold said that White had been instructed to start at the W.A. Ferris
northwest corner and that this was contrary to what the legislature had prescribed,
which was to begin at the northwest corner of Dallas County. Gold opined that, as a
result, White was in error from the very beginning of his survey. Gold further
contended that White’s notes failed to indicate that he had found, uncovered, or
discovered any of the three witness trees and the stake that Ferris had described 1n his
sutvey. Gold explained,

So when he called for the start at the Ferris corner, I suspect he might

have been referring to Ferris’[s|] stake at the northwest corner, but he

totally ignored the other witness trees to prove up, and then headed west

directly into one of the marked witness trees, a four-inch hackberry that

he had to do something to go around, but it was not mentioned at all in

the White field notes.
Gold testified that there were several unexplained mistakes in White’s field notes.
Gold said that White’s “measurements, per se, were relatively tnaccurate, but that may
have been due to any number of reasons that W.C. Wilson’s retracement showed
these inaccuracies and had to be adjusted between creeks and other elements along
the line.”

Gold also criticized Biggerstaffs field notes. Gold said that when Biggerstaff

followed White’s on-the-ground survey and arrtved at the 30th mile on the westerly

line, he found that there was an extra mile.

54
Gold also discussed the descriptions of the prior school districts that were
consolidated to form Northwest and found fault with them. Gold opined that the
“THENCE to the County Line” description was merely repeated by scriveners:

Those early descriptions called for thence to the county line, which was

very, very close, whether it was the legislated county line, which had

never been marked on the ground, or the George White line. That

perpetuation of description seemed to become the habit. One
description writes substantially the same thing as the former description

when tt comes to the county line, thence to the county line, thence to the

county line, and it perpetuates itself going east.

So I am concerned that what the actual scriveners did know at

that time was nothing more than copying what had gone before them.

They did call for the marked survey corners, the mapped survey corners,

but they totally ignored any distance and sometimes bearings to the

county line.

Gold opined that Carroll’s northern boundary in 1959 was indefinite and that the
sctivenets from both school districts, when calling for the county line between
Denton and Tarrant Counties, called for an adjoining and unmarked line about which
they factually seemed to know nothing. Gold also opined that the voters of
Northwest and the voters of Carroll voted on and passed an ambiguous description
and that the ambiguity was patent. As stated above and rebutted by Gilley, Gold
concluded that Carroll’s locattve boundary descriptions were flawed, incomplete, and
most likely ambiguous.

On cross-examination, Gold agreed with the concept that a description like

Carroll’s is presumed to be made with reference to the conditions and state of

premises at that time and that no subsequent change will invalidate or alter it. Gold

55
admitted that he did not find enough evidence to rebut the presumption that White
had taken the actions that he had set forth in his field notes. Gold agreed that, even
though it may have been located erroneously, the White line was the only line
available as the county boundary between Tarrant and Denton Counties between
1853 and 2004. Gold also agreed that Wilson did a competent job retracing the White
line.

Gold acknowledged that the footsteps of the original surveyor must be
followed and that a surveyor must look at the facts and circumstances that existed at
the time the description was made. Gold agreed that “any time you are looking at a
boundary problem|,] extrinsic evidence is welcome.” Gold admitted that he knew
that Northwest was created by consolidating existing school districts but that he did
not look at the legal documents that created the predecessor school districts. Gold
said that it was appropriate to go back to 1901 to the creation of the predecessor
school districts for Northwest.

Gold also agreed to the following:

e Northwest’s description was prepared in 1949, and to interpret that
description, a person must put himself in the position of the drafters of
that description in 1949.

e Ifacall was made earlier than 1949, then a person needed to put himself

in the position of when that earlier call was made.

56
e In 1949, the drafters of Northwest’s description had only one set of field
notes that were available to them that purported to identify the ‘Tarrant
and Denton County line on the ground, and that was White’s field notes

that were on file with the GLO.

e The descriptor for Northwest does not purport to establish the county
line; it merely goes to the county line.
Gold further agreed that during his deposition when asked what he would do if he
had been handed Northwest’s call notes and asked to put the county line on the
ground in 1969 (a random date prior to the 1986 interlocal agreement between the
counties that was at issue in the Tarrant County suit), he responded, “Retrace the White
line.”
d. Outcome
After hearing the testimony above, the trial court signed a judgment denying
Carroll’s request for a declaratory judgment that the Gilley line 1s what the
commissioners court referenced in the 1949 orders, granting Northwest’s request for
a declaratory judgment that the disputed territory is in Northwest and that the school
districts’ common boundary line is the White line, and awarding Northwest attorneys’
fees. The trial court made 109 findings of fact and 41 conclusions of law.” Carroll

then perfected this appeal.

The findings of fact and conclusions of law ate attached as Exhibit A.

57
III. “The County Line,” as Used in the Orders Creating the School Districts,
Was a Descriptor Referencing the White Line.

In its first issue,** Carroll argues that “the County Line” descriptor in the 1949
otders unambiguously” means that the school districts’ common boundary is the
actual county line as defined by the legislature and later located on the ground by
Gilley, not the White line. Carroll relies on the Act of 1852 that “better defin[ed]”
Denton County’s southern boundary as beginning at the northwest corner of Dallas
County “as [then] established by law.”*? Carroll then argues that the county line
established by that Act but then incorrectly identified until 1t was later surveyed by
Gilley as a result of the Tarrant County suit 1s what was meant by “the County Line in
the 1949 and 1959 orders. Carroll’s argument fails because it turns on the premise

that the orders’ use of the descriptor “the County Line” is a reference to the actual

‘Within the first Roman numeral in the argument section of Carroll’s brief,
Carroll lists 22 findings of fact (8-18, 22, 28, 34-36, 67, 75-76, 85, 94, 96) and 6
conclusions of law (4 and 17-21) as corresponding to various arguments that it makes
in its first through third issues. The findings of fact that Carroll lists that appear to
correspond to its first issue are as follows: 8—18, 28, 34-36, 67, 75-76, and 96.
Carroll, however, does not specifically mention the majority of these findings 1n its
arguments. Our analysis will focus on the findings that are necessary to the
disposition of this appeal.

Although Carroll contends that the term “the County Line” is unambiguous,
and therefore must be construed as a matter of law, it nevertheless challenges the
sufficiency of fact findings supporting the trial court’s conclusions.

Act approved Jan. 24, 1852, 4th Leg., R.S., 1852 Tex. Gen. Laws 32, 32,
reprinted in 3 H.P.N. Gammel, The Laws of Texas 1822-1897, at 910, 910 (Austin,
Gammel Book Co. 1898).

58
demarcation between the jurisdictions of Tarrant and Denton Counties that was not
finally determined until 2004 despite probative evidence that “the County Line” was a
descriptor of the line marked on the ground by White in 1852-1853, that the White
line was used to describe the boundaries when the Legislature commanded that
existing school districts be given definite boundaries, and that those defined school
districts wete later combined to form Northwest and Carroll.

A. Standard of Review

In a bench trial, the trial court, as the factfinder, weighs the evidence and
judges a witness’s credibility and may accept or reject any witness’s testimony 1n whole
ot in part. Szster Initiative, LLC v. Broughton Maint. Ass'n, Inc, No. 02-19-00102-CV,
2020 WL 726785, at *5 (Tex. App.—Fort Worth Feb. 13, 2020, pet. dented) (mem.
op.) (citations omitted). The same 1s true when there is a battle of the experts, as
there was here; it 1s the sole obligation of the factfinder to determine credibility and
weigh testimony, particularly opinion evidence. See Morrell v. Finke, 184 S.W.3d 257,
282 (Tex. App.—Fort Worth 2005, pet. denied).

A trial court’s findings of fact have the same force and dignity as a jury’s
answets to juty questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991). As with jury findings, a trial court’s fact-findings on disputed issues are not
conclusive, and when the appellate record contains a reporter’s record, an appellant
may challenge those findings for evidentiary sufficiency. Catakna v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121, 126

59
(Tex. App.—Fort Worth 2016, no pet.). We review the sufficiency of the evidence
supporting challenged findings using the same standards that we apply to jury
findings. Catalina, 881 S.W.2d at 297.

We may sustain a legal-sufficiency challenge—that 1s, a no-evidence
challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of
law or of evidence bar the court from giving weight to the only evidence offered to
ptove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Sdzelds
v. Lid. P’ship v. Bradberry, 526 SW.3d 471, 480 (Tex. 2017); see also Ford Motor Co. v.
Castillo, 444 SW.3d 616, 620 (Tex. 2014) (op. on teh’g); Uniroyal Goodrich Tire Co. v.
Martinez, 977 SW.2d 328, 334 (Tex. 1998) (op. on treh’g). In determining whether
legally sufficient evidence supports the finding under review, we must consider
evidence favorable to the finding if a reasonable factfinder could and must disregard
contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete
Co. v. Islas, 228 SW.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 SW.3d 802,
807, 827 (Tex. 2005). We indulge “every reasonable inference deducible from the
evidence” in support of the challenged finding. Gunn v. McCoy, 554 S.W.3d 645, 658
(Tex. 2018).

Anything more than a scintilla of evidence is legally sufficient to support a
finding. Cont’ Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leztch v.

Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); see also 4Pront Engineered Sol, Inc. v. Rosales,

60
505 S.W.3d 905, 909 (Tex. 2016) (“The evidence is legally sufficient if . . . there 1s
mote than a scintilla of evidence on which a reasonable juror could find the fact to be
true.”). Scintilla means a spark or a trace. Swntilla, Black’s Law Dictionary (11th ed.
2019). More than a scintilla exists if the evidence tises to a level that would enable
reasonable and fair-minded people to differ in thetr conclusions. Rocor Int'l Inc. v.
Nat'l Union Fire Ins., 77 SW.3d 253, 262 (Tex. 2002); Merrell Dow Pharm., Inc. v. Havner,
953 SW.2d 706, 711 (Tex. 1997). On the other hand, when the evidence offered to
ptove a vital fact is so weak that it creates no more than a mere surmise or suspicion
of its existence, the evidence is no more than a scintilla and, in legal effect, is no
evidence. King Ranch, Inc. v. Chapman, 118 SW.3d 742, 751 (Tex. 2003); Kindred v.

Con/ Chem, Inc., 650 SW.2d 61, 63 (Tex. 1983).**

“Carroll does not specify in its brief whether it 1s challenging the legal or
factual sufficiency of the trial court’s findings of fact. The only mention of the
standard of review is the following statement: “Like Tarrant County v. Denton County,
this is an appeal from a bench trial[,] and the standard of review 1s the same.” We
have previously stated that when an appellant does not specify whether it is
challenging the legal or factual sufficiency of the trial court’s findings and states only
that “|t]he vast majority of the Court’s Findings of Fact ate not supported by the
evidence,” we would review the trial court’s findings of fact for only legal sufficiency.
See Wells Fargo Bank, N.A v. Blackburn, No. 02-10-00166-CV, 2011 WL 346951, at *5
n.10 (Tex. App.—Fort Worth Feb. 3, 2011, no pet.) (mem. op.); see also Seelbach v.
Clubb, 7 SW.3d 749, 764 (Tex. App.—Texarkana 1999, pet. denied) (nterpreting
appellant’s challenge—that finding of fact was “contrary to the evidence as a matter
of law”—as solely a legal-sufficiency challenge). Because Carroll occasionally uses the
phrases “no evidence” and “contrary to law” when challenging various findings of
fact and because Carroll does not seek a new trial but asks us only to reverse and
render, we therefore review the challenged findings of fact solely for legal sufficiency.

61
Conclusions of law may not be challenged for sufficiency but ate reviewed to
determine their correctness based upon the facts. Rzschon Dev. Corp. v. City of Keller,
242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet. denied).

B. The Law on Boundary Disputes

In a boundary dispute, “the rules of evidence are more liberal than those
governing other actions.” Reynolds v. Bradford, 233 SW.2d 464, 465 (Tex. App.—Fort
Worth 1950, no writ). “[A]ncient maps and plats, long and publicly recognized, with
reference to which it may be presumed that the parties and the general public have
acted, are usually admissible 1n evidence to show the location of boundaries.” Id. at
466.

The testimony of a surveyor is also admissible in a suit to resolve a boundary
dispute. See Craddock v. Humble Oil ¢ Ref. Co., 234 S.W.2d 137, 143 (Tex. App.—Fort
Worth 1950, writ refd n.t.e.). A surveyor may testify as to the lines that he ran on the
ground and the observations that he made while making the survey. See Floyd v. Day,
50 S.W.2d 371, 372 (Tex. App.—Eastland 1932, writ dism’d w.oj.) (“These
explanations by the respective surveyors as to how they reached the rocks claimed by
them respectively as the beginning point... were admissible and proper under the
facts of this case[.|’’).

A sutveyor may also testify about another surveyor’s lines on the ground. A
boundary determination 1s guided by the footsteps of the original surveyor and

involves a question of fact:

62
The question of where boundaries ate on the ground 1s a question of
fact to be determined from the evidence. Szer Oi/ ¢» Gas, Inc. v. EOG
Res., Inc, 246 S.W.3d 197, 202-03 (Tex. App.—San Antonio 2007, no
pet.).... “When finding the lines of a survey, the cardinal rule 1s that
the footsteps of the original surveyor, if they can be ascertained, should
be followed.” Id at 204. “If the actual lines and cornets run by the
original surveyor can be found, they are controlling, even if they are
inconsistent with the calls and references in that surveyor’s field notes.”
Id. “When one can locate on the ground with certainty and without
inconsistency the objects or monuments designated by the original
sutveyor as marking the lines he actually traced, the survey must be laid
out from those points.” Id.

B e P Dev, LLC v. Kuighthawk, LLC, Serres G, No. 04-15-00575-CV, 2017 WL
1161227, at *3 (Tex. App.—San Antonio Mar. 29, 2017, pet. denied) (mem. op.); see
also King Ranch, Inc. v. Garcia, No. 04-13-00605-CV, 2014 WL 4627592, at *2 (Tex.
App.—San Antonio Sept. 17, 2014, pet. denied) (mem. op. on reh’g) (same); Scates v.
Crawford, No. 12-12-00380-CV, 2014 WL 1308629, at *3 (Tex. App.—Tyler Mar. 31,
2014, no pet.) (mem. op.) (same). Moreover, a presumption exists that surveyors have
sutveyed and marked all lines to the corners when their work has been accepted by
the GLO:

Sutveyorts ate presumed to have performed their official duties and to
have actually surveyed and marked all the lines to the corners. See State v.
Sullivan, 127 ‘Tex. 525, 92 S.W.2d 228, 232 (1936) (stating that a surveyor
is presumed to have done his official duties); E].| Tex. Pulp ¢» Paper Co.
[v. Cox], 381 S.W.2d [78,] 84 [(Tex. App—Beaumont 1964, writ rePd
n.t.e.)| (stating that absent proof to the contrary, it is presumed the
original surveyor performed his duties, including marking the lines).
This is particularly true after their work has been accepted by the GLO.
See State v. Sun Oil Co, 114 SW.2d 936, 945-46 (Tex. [] App.— Austin
1938, writ refd) (stating that after an extended lapse of time, and
issuance of a patent, the county surveyor should be presumed to have

ptoperly discharged his official duties).

63
TH Invs., Inc. v. Kirby Inland Marine, L.P., 218 SW.3d 173, 206 (Tex. App.—Houston

[14th Dist.] 2007, pet. denied). “Unless later surveyors can, by following the original

sutveyor|’s] footsteps show that the original surveyor’s calls are a mistake and

incorrect, the survey must be constructed as called for by the original surveyor.” Keng

Ranch, 2014 WL 4627592, at *3.

“The law in Texas is clear that in locating disputed boundary lines, priority
must be given to the calls of the original grant [that] are more specific and definite in
pteference to those merely general and indefinite.” See/bach, 7 SW.3d at 764
(footnotes omitted).

C. Legally Sufficient Evidence Supports the Trial Court’s Findings
Supporting its Conclusion that “the County Line” Descriptor in the
School Districts’ Orders Is a Reference to the White Line.

1. The Scope of the Evidence that We May Consider

At the outset of tts argument, Carroll sets forth various alternatives for how to
categorize the 1949 and 1959 orders that created Northwest and Carroll—as
legislative acts, administrative acts, judicial acts, or deeds—but then argues that no
matter which category is chosen, we must give the phrase “the County Line” its plain
meaning as used within the four corners of the orders. Carroll states that the plain
meaning of “county line” is the “boundary between two counties,” but Carroll then

looks to the Act of 1852, in which the legislature defined Denton County’s

boundaries, in order to interpret the term “the County Line” as used in the orders

64
creating Northwest and Carroll. Despite arguing that only the plain language in the
orders’ four corners can be used to interpret “the County Line,” Carroll’s reference to
the Act of 1852, as well as tts reliance on the Tarrant County case that established the
Gilley line as the counties’ common boundaty, reveals its dependence on the internal
context of the use of the words and the citcumstances surrounding their use to reach
its proffered outcome.

We have previously stated that the “commissioners courts’ orders [at issue
here] fall generally within the [DJA’s] phrase of ‘other writings constituting a
contract.”” Carroll IT, 441 S.W.3d at 690. When a contract’s meaning is disputed, our
ptimary objective is to ascertain and give effect to the parties’ intent as expressed in
the instrument. See URI, Inc v. Kkberg Cty, 543 S.W.3d 755, 763 (Tex. 2018). In
determining the intent as expressed in an instrument, the Texas Supreme Court has
made clear that we may interpret a word’s meaning by looking to the internal context
within a document and the circumstances existing when the document was created (so
long as those circumstances are not used to contradict the word’s meaning):

“[W]ords are simply implements of communication, and imperfect ones

at that. Oftentimes they cannot be assigned a rigid meaning, inherent in

themselves. Rather, their meaning turns upon use, adaptation|,] and

context as they are employed to fit various and varying situations.”

Even a single word can carry subtle—and significant—differences 1n

meaning when applied to different situations.

Accordingly, to home in on the meaning the parties intended, we
have long allowed that words must be construed in the context in which

they are used. Context 1s not, however, confined to the two-dimensional
contractual environs in which the words exist but may also encompass

65
“the circumstances present when the contract was entered.” ‘This is so
because words are “the skin of a living thought,” and our quest is to
determine, objectively, what an ordinary person using those words under
the circumstances 1n which they ate used would understand them to
mean.

... Consideration of surrounding circumstances 1s limited by the
parol evidence tule, which prohibits a party to an integrated written
contract from presenting extrinsic evidence “for the purpose of creating
an ambiguity or to give the contract a meaning different from that which
its language impotts.”

The parol evidence rule does not, however, prohibit courts from
considering extrinsic evidence of the facts and circumstances
sutrounding the contract’s execution as “an aid in the construction of
the contract’s language,” but the evidence may only “give the words of a
contract a meaning consistent with that to which they are reasonably
susceptible, z¢., to ‘interpret’ contractual terms.” . ..

Mindful of our responsibility “to honor the parties’ agreement”
without altering it, we have thus made a clear distinction between
extrinsic evidence that illuminates contract language and extrinsic
evidence that adds to, alters, or contradicts the contract’s text. We
recently added lucidity on this topic in Fest Bank v. Brumitt|, 519 S.W.3d
95 (Tex. 2017)|. Analogizing to the statutory-construction context, we
explained what it means to consult “evidence? of ‘attending
circumstances” to “aid in the construction of [a] contract’s language”
without running afoul of the parol evidence tule:

In the same way that dictionary definitions, other statutes,
and court decisions may inform the common, ordinary
meaning of a statute’s unambiguous _ language,
circumstances sutrounding the formation of a contract may
inform the meaning of a contract’s unambiguous language.
But courts may not rely on evidence of surrounding
circumstances to make the language say what tt
unambiguously does not say.

66
Id. at 764-65, 767 (footnotes omitted). Additionally,

even though a written contract be unambiguous on its face, parol

evidence is admissible for the purpose of applying the contract to the

subject with which it deals .... It merely permits proof of the then|-|

existing citcumstances, in order to enable the court to apply the language

used therein to the facts as they then existed.
EOG Res., Inc. v. Wagner ¢ Brown, Lid, 202 SW.3d 338, 344 (Lex. App.—Corpus
Christi-Edinburg 2006, pet. denied). Moreover, “[t]he parol evidence rule applies
only to contractual or jural writings evidencing the creation, modification,
termination|,] or securing of a particular right or obligation. The rule does not apply
to mere statements or recitals of past facts.” West v. Ouintanilla, 573 S.W.3d 237, 248
(Tex. 2019) (citing Gannon v. Baker, 818 S.W.2d 754, 755-56 (Tex. 1991)).

2. The Particular Evidence that We May Consider

Relying on the guidance provided by the case law cited above, we may consider
the contextual evidence provided within the 1949 orders, as well as contextual
evidence of the circumstances present when the orders were signed. See URI, Inc, 543
S.W.3d at 764. With regard to the latter—the parol evidence that we may consider—
we limit our consideration to evidence of then-existing circumstances and the
surrounding circumstances that informed the meaning of the term “the County Line”

in the 1949 orders. Those circumstances were represented in various documents that

were created both before and after 1949.

67
The tecotd, however, reflects that Dr. Jeffress and Gilley agreed that in
determining Northwest’s boundaries as they existed in 1949, they could not consider
documents that were prepared after 1949 because to do so would not be following in
the footsteps of the original surveyor who would not have had access to those
documents. And Gold agreed that in order to interpret Northwest’s description, a
person must put himself in the position of the drafters of that description in 1949.
Moreover, Dr. Jeffress and Gilley also agreed that the Gilley line that was surveyed in
2004 could not be considered by the 1949 drafters. We therefore focus on the
documents that were available to the drafters of the 1949 orders. See Peeicher v. Ely, 53
S.W.2d 817, 818 (Tex. App.—Amarillo 1932, writ ref'd) (using cardinal tule of
construction of instruments—that the intent of the parties is the dominant ruling
factor and that the instruments should be construed in light of the circumstances
surrounding the parties at the time of their making—and holding that it was proper to
consider the state highway referred to in the commissioners court’s order “as it
existed on the ground at the time of the aforesaid election”). Applying these
parameters to the record focuses our review on the orders creating the predecessor
school districts and the survey of the White line—all of which existed and were
available to the drafters of the 1949 orders creating Northwest—and on the testimony
from Northwest’s experts because they were the only experts who relied on these

pieces of evidence in forming their opinions.

68
3. Why the Descriptor “the County Line” Is a Reference to the White
Line

Considering evidence favorable to the findings if a reasonable factfinder could
and disregarding contrary evidence unless a reasonable factfinder could not, we
conclude that more than a scintilla of evidence supports the trial court’s findings of
fact determining that “the County Line” descriptor in the 1949 orders 1s the White
line, as explained below.

In this battle of the experts, we note that Carroll has not challenged on appeal
the qualifications or the reliability of the opinions provided by Northwest’s experts,
not has Carroll challenged the ability of Northwest’s experts to use their surveying
skills to interpret the metes-and-bounds description in the 1949 orders. At the outset
of Gilley’s testtmony, he refuted Carroll’s faulty premise that “the County Line”
descriptor in the 1949 orders is a reference to the true county line—a demarcation
that separates two counties or political subdivisions. In distinguishing the true county
line from the line at issue here, Gilley explained that “even though we keep referring
to a county line, it’s really not about the [true] county line. It 1s about a line that is
described in a description.” In essence, Gilley testified that “the County Line”
descriptor in the 1949 orders served as shorthand for a line on the ground that
described a call that closed the southern boundary of Denton County and the

northern boundary of Tarrant County. And that shorthand descriptor was

69
“consisten|t]| from the original creation of the school districts up to the
consolidation.”

As set forth above in the section describing the creation of the predecessor
school districts, the Denton County Commissioners Court gave metes-and-bounds
descriptions to Roanoke Common School District No. 59, Elizabeth Common School
District No. 58, Walnut Grove Common School District No. 73,°° Helm No. 83 (later
consolidated with several other schools to form Justin Rural High School District),
and Avondale No. 90 (ater consolidated with Haslet No. 97), and each of those
school districts’ metes-and-bounds descriptions contained a call to the Denton
County line. When Haslet School District No. 97 was formed, tts metes-and-bounds
description stated that the area begins at “the Northeast corner of the Avondale
District No. 90, a point in the North line of Tarrant County and the South line of
Denton County.”

Those metes-and-bounds descriptions were carried forward in the January 1949
commissioners court order that combined Justin Rural High School District, Roanoke
Independent School District, and Haslet Common School District No. 97 to form
Northwest and referenced the Denton County—Tarrant County line:

BE IT ORDERED, ADJUDGED],] AND DECREED BY THE
COMMISSIONERS] COURT OF DENTON COUNTY, TEXAS:

*As previously stated, Roanoke, Elizabeth, and Walnut Grove were later
consolidated to form Roanoke ISD.

70
1. That said elections were duly called; that notice was given in
accotdance with law and in accordance with the order given by the
County Judge calling [the] elections; that the elections were held in
accotdance with law[;] [and] that due return[s] of said elections have

been made by the proper officers.

2. That the votes cast in Justin Rural High School District, and
the votes cast in R[oa]noke Independent School District show a majority
voting in favor of consolidation of said districts herein mentioned.

3. That Haslet[] Common School District No. 97 of Tarrant and
Denton Counties, Rhome Independent School District of Wise County,
Roanoke Independent School District of Denton and Tarrant
Counties|,] and Justin Rural School District of Denton County are
hereby declared to be consolidated and shall hereafter be known as
“North West Independent School District.”

Said consolidated Northwest Independe[nt] School District being
described by metes and bounds as follows|,| to wit[:]

BEGINNING at the Southeast corner of [W]ise County, same
being the South[]west corner of Denton County and on the North
Boundary line of Tarrant County, a poimt [with]in the Matthew Ashton
Survey;

THENCE North along the County line between Wise and
Denton Counties to a point in the Thomas Peoples survey that is due
east of the most southerly southeast corner of the Smith County School
Land survey; |Single-spaced metes-and-bounds descriptions like the ones
above continue for two pages.|

THENCE South to the County Line between Denton and Tarrant
Counties;

THENCE East along the county line between Tarrant and Wise
Counties to the Southwest corner of Denton County being the place of

71
beginning, containing a total of 126,082 acres of land more or less|.|

[Emphasis added tn bold and in italics. |
Similarly, the February 1949 commissioners court order that consolidated Fairview

Common School District with Northwest referenced the county line in the same way:

BE IT ORDERED, ADJUDGED],] AND DECREED BY THE
COMMISSIONERS] COURT OF DENTON COUNTY, TEXAS:

1. That said election was duly called; that notice was given in
accordance with law and in accordance with the order given by the
County Judge calling the election; that the election was held in
accordance with law; that due return of said election has been made by
the proper officers.

2. That the votes cast in North West Independent School District
show a majority voting in favor of consolidation of said district herein
mentioned.

3. That North West Independent School District of Denton,
Wise, and Tarrant Counties and Faitview Common School District No.

39 of Wise County are hereby declared to be consolidated and shall
hereafter be known as North West Independent School District.

Said consolidated North West Independent School District being
described by metes and bounds as follows, to wit:

BEGINNING at the Southeast corner of Wise County, same
being the Southwest Corner of Denton County and on the North
Boundary line of Tarrant County, a point within the Matthew Ashton
Survey;

THENCE North along the County Line between Wise and
Denton Counties to a point in the Thomas Peoples survey that is due
East of the most Southerly southeast corner of the Smith County School
Land Survey; [Single-spaced metes-and-bounds descriptions like the
ones above continue for three pages.|

72
THENCE South to the County Laine between Denton and Tarrant
Counties;

THENCE East along the County line between Tarrant and Wise

Counties to the Southwest corner of Denton County being the place of

beginning, containing a total of 136,322 acres of land, more or less[.|

[Emphasis added tn bold and italics.|
It is apparent from the context of the 1949 orders that the Denton County
Commissioners Court was referring to a specific line on the ground. The language the
otders used carried forward the component school districts’ definite boundaries that
the Texas Legislature had commanded that they be given. To view this language as
referring to a line that would not be located for another half century (or to anticipate
that the line could someday move if it had been surveyed incorrectly) 1s completely at
odds with the orders’ self-apparent purpose of defining the existing boundaries of the
newly created Northwest school district.

As noted by Gilley, and as can be seen in the wording of the orders, the
drafters of the 1949 orders specifically listed the school districts that were
consolidated to form Northwest. Gilley opined that the descriptions of Northwest’s
ptedecessor school districts were reliable because any prior discrepancies had been
removed in 1901 when the Denton County Commissioners Court described the metes
and bounds of the county’s school districts so that they would be “defined with

certainty.” And “every one of these descriptions [in the orders creating the

ptedecessor school districts] that call for the county line are calling for the same line.”

73
Using the metes-and-bounds descriptions of several of the predecessor school
districts that were consolidated to form Northwest, as well as the acreage listed for
those districts, Gilley concluded that the calls to “the County Line” went to the White
line. Gilley’s identification of the boundary line for Northwest automatically located
the boundary line for Carroll because Carroll 1s the funior description and because the
south boundary line of Northwest is the north boundary line of Carroll. Gilley thus
used proper surveying rules to interpret “the County Line” descriptor in the 1949
otders. And his testtmony demonstrates that “the County Line” descriptor was not
indefinite or ambiguous at the time it was used in the 1949 orders. Nothing in the
record shows that Gilley’s testimony was incorrect.

In addition to Gilley’s testimony connecting the county-line references in the
ptedecessor school districts’ orders to the White line, Carroll’s rebuttal expert Gold
agreed that the Northwest description does not purport to establish the county line but
merely goes to the county line. Gold agreed that if he had been asked to put the county
line on the ground as it existed at the time that Northwest and Carroll were created,
he would have retraced the White line.

Moreover, with regard to the White line, the evidence demonstrates that White
had surveyed the county line 1n December 1852—January 1853 and that his field notes
were on file with the GLO from 1901-1959 when the predecessor school districts,
Northwest, and Carroll were created. Even if the White line may have been located

erroneously for purposes of locating the actual boundary line between the counties,

74
the evidence showed that the White line was the only line purporting to be the
Denton County—Tarrant County line in 1949 and that the drafters who wrote the
descriptions for these school districts had notice that the White line purportedly
established the county line on the ground. Gilley testified that he had found evidence
on the ground to confirm the location of the survey corners referenced by White. See
Be P Dev. 2017 WL 1161227, at *3 (If the actual lines and corners run by the
original surveyor can be found, they are controlling|.]” (quoting Szer O7/ ¢ Gas, 246
S.W.3d at 202-03)); TH Invs., Inc, 218 S.W.3d at 206 (holding that no evidence
indicated that the line that surveyor Boyles found was not Trott’s line where Boyles
stated that he was able to find Trott’s line). And all the experts agreed that Wilson
had retraced the White line and had located the White line within the precision
tequited by the Texas Board of Professional Land Surveying. See King Ranch, 2014 WL
4627592, at *3. ‘This constituted further evidence that “the County Line” descriptor
in the 1949 orders was not indefinite or ambiguous.

Here, Northwest’s experts were the only ones who properly followed in the
footsteps of the original surveyor. The trial court accepted Northwest’s experts’
opinions that were based on data that was available to the 1949 drafters when they
wrote “the County Line” descriptor and rejected Carroll’s experts’ opinions that relied
solely on the outcome of a lawsuit 50 years later that involved a determination of the
true county line. As the factfinder, the trial court was free to do this. See Morr//, 184

S.W.3d at 282; see also King Ranch, 2014 WL 4627592, at *1, *3 (deciding between

75
competing experts and accepting appellant’s surveyors’ opinions because they “more
closely followed the cardinal rule to follow the footsteps of the original surveyor’).
Based on the orders creating the predecessor school districts, the survey of the
White line, the stated purpose of the 1949 orders to define the boundaries of
Northwest by metes and bounds, as well as the testimony from Northwest’s experts
who properly based their opinions on that evidence that was available to the drafters
of the 1949 orders, we conclude that there is more than a scintilla of evidence to
support findings of fact 8-11 and 14-18 that detail how the predecessor school
districts became part of Northwest and Carroll and how the references to the county
line in those predecessor school districts’ metes-and-bounds descriptions meant the
White line. We also conclude that there is more than a scintilla of evidence to support
findings of fact 28 and 36, regarding the White line’s being surveyed by White and
retraced by Wilson, and unchallenged finding of fact 30 that states, “As of 1959,
White’s field notes were the only field notes filed with the General Land Office that
described the Tarrant/Denton County line.” See Seedbach, 7 S.W.3d at 765-66 (holding
evidence legally sufficient to support finding that Henry’s survey was the proper legal
description of a certain tract because he had used the oldest survey that he could find
and had followed in the footsteps of the original survey when making his own survey);
cf. Templeton v. Dreiss, 961 SW.2d 645, 659-60 (Tex. App.—San Antonio 1998, pet.
denied) (interpreting the interest 1n and to a road described in a 1933 deed by using a

1918 deed and a reference to the Linen Survey in the 1933 deed). And these 12 fact-

76
findings support conclusions of law 4 and 21 that determined that “the County Line”
referenced in the 1949 orders is the White line.
We hold that legally sufficient evidence supports findings of fact 8-11, 14-18,
28, and 36 and that conclusions of law 4 and 21 are correct based on the 12 fact-
findings that we have analyzed. See URJ, Inc, 543 SW.3d at 765 (permitting
interpretation of unambiguous language based on circumstances). Accordingly, we
overtule Carroll’s first issue.*°
D. Tarrant County Did Not Ascertain the School Districts’ Common
Boundary Line; thus, the Trial Court’s Determination of the School
Districts’ Common Boundary Did Not “Reestablish” the County Line
Contrary to Tarrant County.
We address Carroll’s second and third issues together because they relate to

whether the Tarrant County sutt applies here and whether the White line as the county

line is contrary to Tarrant County. In its third tssue,*’ Carroll argues that the decision in

*We need not address the remaining findings of fact and conclusions of law
that Carroll lists in its first issue because the trial court’s judgment on Northwest’s
declaratory-judgment claim can be sustained on the grounds stated above. See Tex. R.
App. P. 47.1; Villages of Sanger, Ltd. v. Interstate 35/ Chisam Rd. L.P., No. 05-16-00366-
CV, 2018 WL 703327, at *6 (Tex. App.—Dallas Feb. 5, 2018, no pet.) (mem. op.);
SAVA Gumarska in Kemijska Industria D.D. v. Advanced Polymer Sets. Ine, 128 S.W.3d
304, 315-16 (Tex. App.—Dallas 2004, no pet.) (citing Rule 47.1 and declining to
address sufficiency of evidence supporting findings of fact because findings rendered
immaterial once conclusions of law determined to be correct on alternate basis). And
based on our disposition of Carroll’s first issue, we do not reach Carroll’s fifth issue,
which addresses Northwest’s alternative theories for establishing the taxing line as the
common boundaty between the school districts. See’Tex. R. App. P. 47.1.

"Carroll states that its third issue is responding to “FF 21, 23-25, 78, 93” and
“CL 16, 23-24.” Of these, only finding of fact 78 is pertinent to our analysis.

771
Tarrant County ascertained the location of both the county line and the school districts’
common boundary. Carroll argues that because this court determined the physical
location of the Denton County—Tarrant County line in Tarrant County, that
determination is binding as to the school districts’ boundary:
This [cJourt then ruled that the Denton/Tarrant County Line would run
from the northwest corner of Dallas County as located by [surveyor]
Jackson, to the southeast corner of Wise County. In 2005, Gilley
sutveyed and marked that line. Thus, the decision in Tarrant County
“ascertain[ed] on the ground the physical location of [the counties]
legislatively mandated boundaries.” Tarrant County, 87 S.W.3d at 166.
And since the school district boundary lay on the County Line,
the Tarrant County decision, and the subsequent Gilley survey, also
ascertained the location of the school district boundary. It’s that simple.
[Citations to sections of brief omitted]
In its second issue, Carroll argues that the trial court “erred in “reestablishing” the
White line as the county line contrary to Tarrant County. Within this argument, Carroll
contends that there is no evidence to support findings of fact 22, 28, 35, 75, and 76.
Of these findings, we have held above that finding of fact 28 is supported by more
than a scintilla of evidence. Of the remaining findings of fact, only 75 and 76

specifically relate to the Tarrant County decision:

75. NISD was not a patty to the Tarrant County v. Denton County
lawsuit.

76. NISD did not intervene in the Tarrant County v. Denton County
lawsuit.

We therefore focus our analysis on these two findings, finding of fact 78 that 1s

challenged in Carroll’s third issue, and two conclusions of law that Carroll ignored.

78
Carroll attempts to counter findings of fact 75 and 76 by arguing that by filing a
letter with the trial court, Northwest became an intervenor in the Tarrant County
lawsuit:

[Northwest] intervened in Tarrant County v. Denton County by filing a letter

in the 43rd District Court asking the judge to rule that his judgment

would not affect other governmental entities who are “not parties to this

suit.” However, the 43rd District Court did not grant that request, and

two weeks later, it signed the Modified and Corrected Final Judgment.

By filing this letter with the 43rd District Court, [Northwest] became

one of “the parties to this suit.” [References to the record and to other

sections of the brief omitted]

As explained by Northwest, its letter was not a pleading. First, it could not
have properly intervened in the Tarrant County suit because it was not a patty to the
Interlocal Cooperation Agreement—the validity of which was at issue in that suit.
And second, its letter was dated more than six months after this court’s mandate
issued, making any purported intervention untimely. See Gwar. Fed. Sav. Bank v.
Horseshoe Operating Ca., 793 S.W.2d 652, 657 (Tex. 1990) (stating that an entity has the
right to intervene if the intervenor could have brought the same action, or any part
thereof, in its own name); o/ Robertson v. Hix, 383 S.W.3d 170, 174 (Tex. App.—Waco
2012, pet. denied) (holding petition in intervention untimely when tt was filed one
month after mandate had issued and the judgment was not set aside). We hold that

there is more than a scintilla of evidence that supports the trial court’s findings that

Northwest was not a party to and did not intervene in the Tarrant County sutt.

79
With regard to Carroll’s challenge to finding of fact 78—that “[t]he Gilley [Aine
did not exist 1n 1949 and did not exist until 2004”—sufficient evidence supports the
finding. Gulley himself testified that he surveyed and marked what became known as
the Gilley line in 2004 and that the line did not exist in 1949. Dr. Jeffress also agreed
that the Gilley line was not surveyed, marked on the ground, or filed until 2004. We
hold that there is more than a scintilla of evidence that supports the trial court’s
finding that the Gilley line did not exist in 1949.

Carroll’s second and third issues ignore the following conclusions of law:

27. Neither [Northwest] nor [Carroll] was a party to, nor bound by, the
Interlocal Agreement nor the Tarrant County v. Denton County [Jawsutt.

28. The Tarrant County v. Denton County |Aawsuit did not tule on the
boundaries of [Carroll] nor [Northwest].”

Our teview of the Tarrant County decision demonstrates that the school
districts’ common boundary as referenced in the 1949 orders was not decided 1n that
case. The issue in that case was whether Denton County was bound by the Interlocal
Cooperation Agreement in which four counties, not school districts, sought to settle a
boundary-line dispute. Tarrant County 87 S.W.3d at 175. Tarrant County therefore has

no application to this case.** Moreover, because the Tarrant County decision did not

*Tarrant County filed an amicus curiae brief, arguing that the boundary of
Tarrant and Denton Counties is the Gilley line; that it 1s not subject to being
relitigated; and that “regardless of the decision the [c]ourt reaches on the school
districts’ boundary, it should reiterate that the boundary between Tarrant and Denton
[C]ounties is the Gilley [Jine.” Because we hold that the Tarrant County suit does not
apply to this case, the holding in Tarrant County remains intact.

80
establish the school districts’ common boundary, the trial court in this case did not
“reestablish” the county line; the trial court merely interpreted the term “the County
Line,” as used in the 1949 orders, as the White line. For the reasons discussed 1n the
analysis of Carroll’s first issue, more than a scintilla of evidence supports the trial
court’s finding that “the County Line” descriptor 1s the White line.

Viewing the evidence under the appropriate standard of review, we hold that
more than a scintilla of evidence supports findings of fact 75, 76, and 78 and that
conclusions of law 27 and 28 ate cortect.*” Because the decision in Tarrant County did
not ascertain the location of the school districts’ common boundary and because the
trial court did not reestablish the county line when it ruled that “the County Line”
descriptor in the 1949 orders 1s shorthand for the White line, we overrule Carroll’s
second and third issues.

E. The Finding on Northwest’s Declaratory-Judgment Claim Nullified
Carroll’s Competing Request for a Declaratory Judgment.

In its fourth issue, Carroll argues that the trial court had jurisdiction over its

declaratory-sudgment claim. Carroll states that this argument responds to findings of

*We need not address the remaining findings of fact and conclusions of law
that Carroll lists in its second and third issues. See Tex. R. App. P. 47.1; Villages of
Sanger, Ltd., 2018 WL 703327, at *6; Advanced Polymer Scis., 128 SW.3d at 315-16.

81
fact 5, 74, 89-91, 97, and 99-103 and conclusions of law 5—10, 16, 22, 25—26, and 29—
30 wherein the trial court concluded that it lacked jurisdiction over this claim.”°

Carroll pleaded for “a declaratory judgment that the common boundary
between [Carroll] and [Northwest] lies along the Tarrant/Denton [C]ounty line as
determined by Tarrant County v. Denton County’ and argued that the “actions [as
described in the sixth amended original petition| of the individual defendants, in their
official capacities only, have been and are illegal, unauthorized[,| and w/tra vires.” In
Carroll III, a majority of the justices concluded that the trial court’s subject-matter
jurisdiction over Carroll’s current claims was not limited and held that Carroll’s
“claims as currently pleaded are nothing more than a request for a judicial
determination regarding the location of the actual boundary between the districts.”*
See 502 S.W.3d at 924-25. The trial court, however, made findings that Carroll did
not contest the formation of Northwest, that Carroll’s suit was an attempt to move
the boundary line, that Carroll never sought to annex the disputed area, and that
Carroll did not exhaust tts administrative remedies with the Commissioner of

Education before filing suit. Based on these findings, the trial court concluded that

Carroll’s claims constituted a collateral attack on the 1959 order consolidating Carroll

“The trial court’s first conclusion of law, which Carroll did not include among
the conclusions that tt challenges, states that “[Carroll’s] claims for declaratory relief
and ultra vires are denied.”

“Carroll did not amend its claims after Carroll III.

82
and that Carroll’s clatms were barred because it lacked standing to collaterally attack
the 1949 and 1959 election results that created Northwest and Carroll.

To the extent that the trial court determined that it lacked jurisdiction to
consider Carroll’s request for a declaratory judgment, the trial court erred because that
determination contradicts Carro// LIT, which is law of the case. See Briscoe v. Goodmark
Corp., 102 S.W.3d 714, 716 (Tex. 2003) (“The ‘law of the case’ doctrine is defined as
that principle under which questions of law decided on appeal to a court of last resort
will govern the case throughout its subsequent stages.”’). Thus, the previously listed
findings and conclusions are incorrect as a matter of law.

Because we have determined that these findings and conclusions are incorrect
as a matter of law and that they cannot be sustained under any legal theory supported
by the evidence, we must next determine whether these errors were reasonably
calculated to cause and probably did cause the rendition of an improper judgment.
See Tex. R. App. P. 44.1(a)(1). We hold that they did not. As explained above, the
trial court had three choices for the school districts’ common boundary line: the
White line, the taxing line, or the Gilley line. The trial court found—and such finding
is supported by more than a scintilla of evidence—that the White line 1s the school
districts’ common boundary. The trial court’s White-line finding nullified Carroll’s
competing declaratory-sudgment action requesting that the trial court find that the
Gilley line, as determined by Tarrant County, 1s the common boundary. And because

the White-line boundary places the disputed area within Northwest, the indtvidual

83
defendants’ actions on behalf of Northwest were not illegal, unauthorized, and ultra
vires. Accordingly, we overrule Carroll’s fourth issue.
IV. Immunity and Attorneys’ Fees

Before we set forth Carroll’s sixth issue, which deals with whether Carroll is
immune from Northwest’s counterclaim for declaratory judgment and for attorneys’
fees, we first set out the relevant portions of the parties’ pleadings and the judgment.

Carroll’s live pleading—its sixth amended petition—includes the following
summary of the relief requested, including tts request for a declaratory judgment on
the school districts’ boundary, a determination on its ultra vires claim, and an award

of attorneys’ fees:

ACCORDINGLY, [Carroll] seeks a declaratory judgment that the
common boundary between [Carroll] and [Northwest] lies along the
Tarrant/Denton county line as determined by Tarrant County v. Denton
County, and that the above-described actions of the individual
defendants, in their official capacities only, have been and are illegal,
unauthorized and w/fra vires. [Carroll] also prays for attorneys’ fees,
costs of court, and general relief. [Emphasis added in bold.|

Northwest’s first amended counterclaim seeks a declaratory judgment and an
award of attorneys’ fees:

[Northwest] seeks a declaratory judgment pursuant to Chapter 37 of the
Texas Civil Practice & Remedies Code declaring that the [d]isputed
[tjerritory and the students residing in that territory ate located, and have
always been located, within the boundaries of [Northwest] and that
[Northwest] has all the rights and obligations consistent with the
[d]isputed [t]erritory being located within its boundaries.

... [Northwest] also seeks its costs and reasonable and necessary
attorneys’ fees through trial and any subsequent appeals under Section

84
37.009 of the Tex. Ctv. Prac. & Rem. Code. An award of such costs and
fees to [Northwest] is equitable and just. [Emphasis added.]

Carroll’s first amended answer to Northwest’s first amended counterclaim
raised several affirmative defenses, including governmental 1mmunity, and asserted
that Northwest “is responsible for paying its attorneys’ fees in this action.”

The trial court denied Carroll’s request for a declaratory judgment; granted
Northwest’s request for a declaratory judgment; decreed that “the [disputed
[tlerritory . . . and the students residing in that territory are located, and halve] always
been located, within the boundaries of [Northwest] and that [Northwest] has all the
rights and obligations consistent with the |d]isputed [t]errttory|’s] being located within
its boundaries”; and included the following award of attorneys’ fees in the final
judgment:

IT IS FURTHER ORDERED, ADJUDGEDJ,] AND DECREED that

it is equitable and just under TEX. CIV. PRAC. & REM. CODE

§ 37.009 that [Northwest and the tndividual defendants]... be awarded

their reasonable and necessaty attorneys’ fees and costs incurred 1n this

matter as follows, with all attorneys’ fees and costs being taxed to

[Carroll]:

1. Reasonable and necessary attorneys’ fees in the amount of

$850,055.00 for defending this case through this judgment.

2. If [Carroll] unsuccessfully appeals this judgment to an
intermediate court of appeals, [Northwest and the tndividual defendants]
will additionally recover from [Carroll] the amount of $100,000.00,
representing the anticipated reasonable and necessary attorneys’ fees that

would be incurred by [Northwest] in defending the appeal.

3. If [Carroll] unsuccessfully appeals, or 1f [Northwest and the
individual defendants] successfully appeal, this judgment to the Texas

85
Supreme Court, [Northwest] will additionally recover from [Carroll] the
amount of $75,000.00 if a petition for review is filed, $50,000.00 if the
petition for review 1s granted and/or briefing on the merits is requested
by the Texas Supreme Court, and $40,000.00 1f oral argument is granted
and occurs in the Texas Supreme Court. All of these amounts represent
the anticipated reasonable and necessary attorneys’ fees that would be
incutred by [Northwest] in defending the appeal in the Texas Supreme
Coutt.

IT IS FURTHER ORDERED, ADJUDGEDJ,] AND

DECREED that [Northwest and the individual defendants] are entitled

to recover from [Carroll] postjudgment interest on all of the above at the

tate of five percent (5%), compounded annually, from the date this

judgment is rendered until all amounts are paid 1n full.

On appeal, Carroll argues in tts sixth issue that regardless of the merits of
Northwest’s claim, Northwest is not entitled to a declaratory sudgment and cannot
recover attorneys’ fees and, alternatively, that the attorneys’ fee award is excessive.
The crux of Carroll’s argument 1s that it is mmune from suit and thus is also t1mmune

from paying Northwest’s attorneys’ fees.

A. Carroll?’s Claim of Immunity Regarding Northwest’s Declaratory-
Judgment Action

Carroll argues that both it and Northwest are immune from suit under the DJA
because neither side is challenging the validity of the 1949 and 1959 orders.” Carroll
then appears to argue that in order for Northwest to be able to bring suit against

Carroll, Northwest was required to bring an ultra vires action against Carroll’s officials

as set forth in C7ty of E/ Paso v. Heinrich, 284 SW.3d 366, 372-73 (Tex. 2009). Carroll

“This argument is inconsistent with Carroll’s request that we render declaratory
judgment in its favor.

86
points out that after it amended its pleadings to add an ultra vires claim, Northwest
did not amend its pleadings to add its own ultra vires action against Carroll’s board
and superintendent. Carroll argues that because Northwest elected to proceed only
against Carroll and because Carroll 1s immune from suit, we must dismiss Northwest’s
declaratory-sudgment claim.

Carroll’s argument misses the mark for two reasons. First, Carroll’s reliance on
Heinrich 1s misplaced. In Heznrich, the ‘Texas Supreme Court explained that
declaratory-judgment suits alleging ultra vires clatms are not barred by sovereign
immunity:

[W]hetre statutory or constitutional provisions create an entitlement to
payment, suits seeking to require state officers to comply with the law
are not barred by 1mmunity merely because they compel the state to
make those payments. This tule is generally consistent with the letter
and spirit of our later caselaw. In [Tex Natural Res. Conservation Com’n v.|
IT—Davy, we distinguished permissible declaratory-judgment suits against
state officials “allegedly act[ing] without legal or statutory authority”
from those barred by tmmunity: “In contrast [to suits not implicating
sovereign immunity], declaratory-judgment suits against state officials
seeking to establish a contract’s validity, to enforce performance under a
contract, of to impose contractual liabilities are suits against the State.
That ts because such suits attempt to control state action by imposing lability on the
State.” 74 S.W.3d [849,] 855-56 [(Tex. 2002)] (citations omitted)
(emphasis added).

From this rationale, it 1s clear that suits to require state officials to
comply with statutory or constitutional provisions are not prohibited by
sovereign immunity, even if a declaration to that effect compels the
payment of money. To fall within this w//ra vires exception, a suit must
not complain of a government officer’s exercise of discretion, but rather
must allege, and ultimately prove, that the officer acted without legal
authority or failed to perform a purely ministerial act.

87
284 S.W.3d at 371-72 (citations omitted). In order for Henrich to be triggered,
Northwest would need to have a claim that Carroll’s officers had acted without legal
authority or had failed to perform a purely ministerial act. Id. at 372. Yet the record
is replete with evidence that the disputed territory has always been treated as part of
Northwest. Carroll’s officials did not exert any authority over or exercise any powet
within the disputed territory from the time that Northwest was created; they did not
tax the homes there, they did not educate the students who lived 1n that area, they did
not hold bond elections that covered the disputed territory, etcetera. Thus,
Northwest has no ultra vites claim against Carroll’s officers for acting without legal
authority in the disputed area, and as explained below, Northwest was not required to
file an ultra vires claim against Carroll’s officials in order to maintain its declaratory-
judgment suit against Carroll.

Carroll’s immunity argument pertaining to Northwest’s declaratory-judgment
claim also fails because it ignores our prior discussion of the viability of a declaratory-
judgment action to decide the boundary dispute. Before Carroll filed its sixth
amended petition adding the ultra vires claim, we had already concluded in Carro// IT
that “the [DJA] applies when, as here, a school district seeks to resolve a controversy
regarding a judgment or order issued by a commissioners court even though the
words Judgment’ and ‘order’ are not contained within the specific enumerations listed
in the Act.” 441 S.W.3d at 691. We further stated that “if the suit for declaratory

telief is really just one to clarify a term incorporated into both commissioners courts’

88
agreements, and therefore the judgments and orders they both entered, then this
narrow objective or request for relief 1s properly addressed in a declaratory|-|judgment
action.” Id. at 693.

Because Northwest had no ultra vires claim against Carroll’s board and
superintendent and was not required to bring an ultra vires clatm in order to have a
term 1n the commissioners courts’ orders interpreted under the DJA, we overrule the
portion of Carroll’s sixth issue arguing that it is immune from suit on Northwest’s
declaratory-sudgment counterclaim.

B. = Carroll’s Claim of Immunity Regarding the Award of Attorneys’ Fees

With regard to the award of attorneys’ fees, netther Carroll nor Northwest has
provided much argument or citations to relevant authority. Carroll’s immunity
argument regarding whether it is liable for the award of attorneys’ fees is grounded on
its immunity-from-suit argument. At the conclusion of its Hezurich argument, Carroll
argues in a single sentence that based on Northwest’s failure to bring an ultra vires
claim, we must dismiss both Northwest’s declaratory-judgment counterclaim and the
attorneys’ fee award on the ground of governmental immunity.

The entitety of Northwest’s response is as follows:

[Carroll] waived any potential immunity when, as the plaintiff, it sued

[Northwest] and its trustees and superintendent under the [DJA] and

affirmatively requested its attorneys’ fees as relief. Czty of McKinney v.
Hank’s Rest. Group, L.P., 412 SW.3d 102, 119-20 (Tex. App.—Dallas
2013, no pet.)|,] is dispositive:

89
We turn to the City’s second argument, which addresses
the Reata| Constr. Corp. v. City of Dallas, 197 SW.3d 371
(Tex. 2006)] doctrine. Under Reaia, a governmental entity
is not immune from suit for monetary claims against it that
are “germane to, connected with, and properly defenstve to
affirmative claims made by the entity, to the extent the
claims against the entity offset the entity’s claims.” . ..

So the question is whether the City’s claim for attorneys’
fees under the [DJA], asserted tn its own lawsuit against
HRG, constituted an affirmative claim for relief under
Reata. We conclude that 1t did.

[See also] City of Dallas v. Albert, 354 SW.3d 368, 375 (Tex. 2011); Szate v.
Harper, 562 S.W.3d 1, 15 (Tex. 2018). [Citations to the record omitted.]

In a single paragraph in its reply brief, Carroll argues that the cases cited by
Northwest are distinguishable because if a city 1s not immune to a plaintiffs claim for
monetary relief under Rea/a, it 1s “only to the extent that such a claim offsets the city’s
counterclaim for monetary telief. [197 S.W.3d] at 377.” Carroll points out that it did
not seek monetary relief, only a declaratory judgment against the indtvidual
defendants in their official capacities. Carroll concludes that Reafa and its progeny are
therefore not applicable in this case. We agree with Carroll that Reatfa does not apply,
but we disagree that Carroll 1s immune from the award of attorneys’ fees.

It is unclear why Northwest has attempted on appeal to categorize the
competing declaratory-judgment actions and claims for attorneys’ fees here as falling
within the nuanced Reafa paradigm as the sole basis for upholding the trial court’s
award of its attorneys’ fees. As mentioned above, Reafa and its varied progeny address

governmental immunity in the context of a suit between a governmental entity and a

90
nongovernmental entity or a person when competing claims have been filed and a
monetary claim has been asserted. See 197 S.W.3d at 375-77; see also Harper, 562
S.W.3d at 15; Albert, 354 SW.3d at 375. That is not what we have here, as neither
school district has asserted a claim for monetary relief. Instead, Northwest’s
counterclaim constitutes a standard declaratory-judgment action seeking construction
of “the County Line” descriptor in the 1949 orders. See Tex. Civ. Prac. & Rem. Code
Ann. § 37.004(a) (“A person interested under a... written contract, or other writings
constituting a contract... tay have determined any question of construction .. . arising
under the .. . contract|| ... and obtain a declaration of rights, status, or other legal
relations thereunder.”) (emphasis added). We therefore need not analyze whether
Northwest can fit its square peg (a standard declaratory-judgment claim) into a round
hole (the paradigm set forth in Reafa and its progeny), and we need not delve into
whether competing claims for attorneys’ fees constitute an offset to fit into the
scenario described in Hank’s Restaurant Group.

Instead, the issue of the attorneys’ fee award here 1s similar to that in Czty of
Alton v. City of Mission, No. 13-08-00582-CV, 2010 WL 4018526 (Tex. App.—Corpus
Christi—Edinburg Oct. 14, 2010, pet. denied) (mem. op.). In that case, two cities filed
competing motions for summary judgment for a declaratory judgment concerning
extraterritorial jurisdiction, and the trial court granted summary judgment and
awarded attorneys’ fees in favor of Mission. Id. at *1 (citing Tex. Civ. Prac. & Rem.

Code Ann. § 37.009). The judgment was affirmed on appeal, and the Texas Supreme

91
Court denied review. Id. (citing Czty of Alton v. City of Mission, 164 SW.3d 861, 864,
870 (Tex. App.—Corpus Christi—Edinburg 2005, pet. denied)). Mission then filed a
petition for writ of mandamus with the trial court requesting that the trial court direct
Alton to pay the $60,000 sudgment awarding attorneys’ fees to Mission. Id. The trial
court granted Mission’s petition for writ of mandamus, and Alton appealed. Id.

On appeal, Alton argued that it had not agreed to pay attorneys’ fees in the
underlying action and “therefore, there was no implicit waiver of governmental
immunity for involuntary payment of attorneys’ fees arising out of the [d]eclaratory|-|
[jJudgment action.” Id. The Corpus Christi-Edinburg Court of Appeals set forth the
law on governmental immunity and then explained that 1t was upholding the award of
attorneys’ fees against Alton because the underlying action was not a suit for money
damages and was thus not barred by governmental immunity:

“Governmental immunity, like the doctrine of sovereign immunity to

which it is appurtenant, involves two issues: whether the State has

consented to suit and whether the State has accepted liability.” [Harrs

Cty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009)

(citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.

2003)).| “Immunity from suit is jurisdictional and bars suit; tmmunity

from liability 1s not jurisdictional and protects from judgments.” [Id]

In the present case, Alton appears to argue that it is immune from

suit. Alton argues that this case is similar to C7ty of Galveston v. State of

Texas, 1 which the supreme court held that cities are immune from suits

filed on behalf of the State by the Attorney General to recover money

damages. [217 S.W.3d 466, 468 (Tex. 2007).] We find C7zty of Galveston to

be inapposite; here, the underlying suit does not involve the recovery of
money damages.

92
The Texas Supreme Court has noted that certain declaratory|-|
judgment actions do not implicate the doctrine of governmental
immunity. [Houws. Mun. Emps. Pension Sys. v. Ferrell, 177 SW.3d 502, 509
(Tex. App.—Houston [1st Dist.] 2005), rev'd in part on other grounds, 248
S.W.3d 151 (Tex. 2007); Tex. Educ. Agency v. Leeper, 893 SW.2d 432, 446
(Tex. 1994) (“We conclude that by authorizing declaratory|-|judgment
actions to construe the legislative enactments of governmental entities
and authorizing awards of attorney fees, the [DJA] necessarily waives
governmental immunity for such awards.”).]| An action for declaratory
judgment seeking only a clarification of rights, attorney’s fees, and
costs—as here, in the underlying action—is not a suit for damages
against the State and 1s not barred by governmental immunity. [See Czty
of San Benito v. Ebarb, 88 SW.2d 711, 721 (Tex. App.—Corpus Christi
2002, pet. denied). Moreover, we note that Alton waived any immunity-
from-sutt defense by filing a counterclaim seeking affirmative relief in
the underlying action. See City of Irving v. Inform Constr, Inc, 201 SW.3d
693, 694 (Tex. 2006) (per curtam).]

We do not construe Alton’s argument as asserting immunity to
liability. Insofar as Alton attempted to raise such an issue, we conclude
that the issue was inadequately briefed and was therefore waived. [See

Tex. R. App. P. 38.1().]

Id. at *2 (footnotes were moved to the body).

of a term in the 1949 orders, attorneys’ fees, and costs.

Here, just as in Czty of Alton, there is no claim for monetary damages; instead,

Northwest has asserted a counterclaim for declaratory judgment seeking construction

request for attorneys’ fees for its declaratory-sudgment action fits within the DJA,

which has watved governmental immunity for such awards. See zd. (citing Leeper, 893

S.W.2d at 446).

Northwest’s counterclaim’s

And just as 1n Czty of A/ton, we do not construe Carroll’s minimal argument on

attorneys’ fees as asserting immunity from liability. See zd. To the extent that Carroll

93
attempted to raise such an issue, we conclude that the issue is inadequately briefed and
is therefore watved.* See Tex. R. App. P. 38.1(4).

Accordingly, we hold that the trial court did not err by awarding attorneys’ fees
to Northwest under the DJA. We overrule the portion of Carroll’s sixth issue
regarding tts tmmunity from the attorneys’ fee award.

C. Carroll’s Segregation Challenge Couched as an Excessiveness Challenge

In the remainder of its sixth issue, Carroll argues that the attorneys’ fee award 1s
excessive. Specifically, Carroll contends that the award is excessive because “the vast
majority of [Northwest’s| attorney|s’] fees were incurred in [Northwest’s] unsuccessful
attempts to prevail in the three jurisdictional appeals.” In essence, Carroll argues that
Northwest failed to segregate its fees between those incurred for Carro// I through LI
that dealt with pleas to the jurisdiction and the fees involved in the declaratory-
judgment action. We therefore construe Carroll’s argument as a fatlure-to-segregate

challenge.

®At the end of Cartoll’s one-sentence argument that we must dismiss the
attorneys’ fee award based on governmental immunity, Carroll cites a footnote in its
brief in which it stated that “if the trial court did not have subject[-|matter jurisdiction,
it should have dismissed instead of deciding on the merits.” Because immunity from
suit, not tmmunity from liability, results in a lack of jurisdiction, we are further
convinced that Carroll did not raise immunity from liability on appeal. See Czty of
Dallas v. Albert, 354 SW.3d 368, 373 (Tex. 2011) (“Immunity from lability protects
entities from judgments while tmmunity from suit deprives courts of jurisdiction over

29

suits against entities unless the Legislature has expressly consented|.|”).

94
The record reveals that after the bench trial concluded, both sides submitted
affidavits with detailed invoices to support their requests for attorneys’ fees. Carroll
filed a motion for judgment that did not specifically mention attorneys’ fees and
concluded by stating that all costs should be adjudged against Northwest. After the
trial court signed the final judgment, Carroll filed a motion to modify the judgment
but did not mention the attorneys’ fee award other than to question the summaty-
judgment language that appears in the paragraph awarding Northwest its attorneys’
fees.* Because Carroll failed to assett its segregation complaint in the trial court, we
hold that Carroll has watved tts complaint. See In re M.S., No. 02-20-00147-CV, 2020
WL 6066400, at *11 (Tex. App.—Fort Worth Oct. 15, 2020, no pet.) (mem. op.)
(citing Tex. R. App. P. 33.1; Hruska v. First State Bank of Deanville, 747 SW .2d 783, 785
(Tex. 1988) (holding that party opposing award of attorney’s fees must object to
failure to segregate fees 1n order to preserve the issue for appellate review); Frits v.
McDowell, No. 02-16-00373-CV, 2017 WL 3821889, at *8 (Tex. App.—Fort Worth
Aug. 31, 2017, pet. denied) (mem. op.); In re L.M.M., No. 03-04-00452-CV, 2005 WL
2094758, at *15 (Lex. App.—Austin Aug. 31, 2005, no pet.) (mem. op.)). We overrule

the remainder of Carroll’s sixth issue challenging the award of attorneys’ fees.

“We address this as part of Northwest’s cross-point, zufra.

95
V. Northwest’s “Cross-Points”

At the end of Northwest’s brief, it raises three “cross-points.” Northwest’s
first cross-point asks for two modifications to the judgment: (1) modify the
judgment to describe the location of the school districts’ boundary in the text of the
judgment instead of referencing an exhibit and (2) modify the judgment to state that
the attorneys’ fees were awarded on the basis of a trial on the merits, not a summary
judgment. Northwest’s second and third cross-points challenge the trial court’s failure
to (a) strike Carroll’s expert witnesses Brittain, Jeffress, and Gold and (b) grant
Northwest’s re-urged plea to the jurisdiction. Because Northwest did not file a notice
of appeal, we cannot address its second and third cross-points. See Tex. R. App. P.
25.1(c) (A party who seeks to alter the trial court’s judgment or other appealable
otder must file a notice of appeal.”’). Because Northwest’s first cross-point seeks only
sctivener’s changes to the judgment, we address those requested changes. See Tex. R.
App. P. 43.2(b); of Dupnik v. Hermis, No. 04-12-00417-CV, 2013 WL 979199, at *6
(Tex. App.—San Antonio Mar. 13, 2013, pet. dented) (mem. op.) (“An appellate court
has the authority to modify an incorrect judgment, even without a party’s request,
when the record contains the necessary information to do so.”).

The judgment contains the following description of the location of the school
districts’ boundary:

IT IS FURTHER ORDERED, ADJUDGEDJ,] AND DECREED that

the common boundary line separating the Northwest Independent
School District and the Carroll Independent School District 1s the line

96
retraced by surveyor W.C. Wilson, given by coordinates set forth in
Exhibit B to the Resolution of the Northwest Independent School
District Board of ‘Trustees dated October, 2003, and admitted into
evidence in this matter as Defendants’ Exhibit 123, page bates nos.
NISD/CISD 2950-2951.

Northwest asks that we modify the judgment to include the specific description of the
boundary’s location instead of referencing a Bates-stamped exhibit in the voluminous
recotd. Carroll’s reply brief did not respond to any of Northwest’s cross-points.*
Because the trial court’s mention of Defendants’ Exhibit 123 in the judgment is a
perfectly acceptable way to reference the school districts’ boundary, especially one of
this length, we decline Northwest’s request to modify the judgment to include the
specific description of the boundary’s location. But because the judgment did not
attach the referenced pages from the exhibit, we modify the judgment to specifically
state that the referenced Bates-stamped pages are attached, and we attach those pages
to this opinion as Exhibit B:

IT IS FURTHER ORDERED, ADJUDGEDJ,] AND DECREED that

the common boundary line separating the Northwest Independent

School District and the Carroll Independent School District 1s the line

retraced by surveyor W.C. Wilson, given by coordinates set forth in

Exhibit B to the Resolution of the Northwest Independent School

District Board of Trustees dated October, 2003, admitted into evidence

in this matter as Defendants’ Exhibit 123, page bates nos. NISD/CISD
2950-2951, and attached to this judgment.

*®Carroll filed a motion to modify the judgment in which it requested that the
trial court modify the judgment “to say expressly where the school district boundary is
located, without referring to another document” and to remove or clarify the
statement referencing the summary judgment. Thus, it appears that Carroll is in
agreement with the modifications requested by Northwest on appeal.

97
Northwest also asks that we correct a typographical error in the syudgment. The
paragraph of the judgment containing the typographical error is as follows:

IT IS FURTHER ORDERED, ADJUDGEDJ,] AND DECREED that

it is equitable and just under Tex. Civ. Prac. & Rem. Code § 37.009 that

Defendants’ Motion for Summary Judgment 58 Defendants be awarded their

reasonable and necessary attorneys’ fees and costs incurred in this matter

as follows, with all attorneys’ fees and costs being taxed to Plaintiff... .

[Emphasis added.|
We agtee that the italicized language should not have been included in the judgment.
We modify the judgment to delete that paragraph and replace it with the following
paragraph:

IT IS FURTHER ORDERED, ADJUDGEDJ,] AND DECREED that

it is equitable and just under Tex. Civ. Prac. & Rem. Code Ann. § 37.009

that Defendants be awarded their reasonable and necessary attorneys’

fees and costs incurred 1n this matter as follows, with all attorneys’ fees

and costs being taxed to Plaintiff... .
We make no change to the enumerated paragraphs that follow that paragraph in the
final judgment.

VI. Conclusion

Having overruled Carroll’s dispositive issues and having modified the judgment

to attach the Bates-stamped pages of the exhibit that it references and to correct a

typographical error, we affirm the trial court’s judgment as modified.

/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice

Delivered: July 1, 2021

98
Exhibit A

ORIGINAL

CAUSE NO0.141-210251-05

CARROLL INDEPENDENT SCHOOL
DISTRICT
PLAINTIFF,

IN THE DISTRICT COURT

§
§
§
s
Vs. §

§
NORTHWEST INDEPENDENT SCHOOL § 141" JUDICIAL DISTRICT
DISTRICT AND JOSH WRIGHT, MARK §
SCHLUTER, DEVONNA HOLLAND, §
JUDY COPP, ANN DAVIS-SIMPSON, §
LILLIAN RAUCH AND DR. RYDER §
WARREN IN THEIR OFFICIAL §
CAPACITIES, §

§

DEFENDANTS. TARRANT COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT

le Northwest Independent School District (hereinafter “NISD™) was created by the citizens
of Tarrant, Wise, and Denton counties in duly noticed and held elections in 1948 and 1949 (the "
1949 Election").

2. NISD encompasses territory in Denton, Tarrant, and Wise Counties.

3. The 1949 clection creating NISD was a consolidation of the Justin Rural High School
District (of Denton County), the Roanoke Independent School District (hereinafter “Roanoke
ISD”) (of Denton and Tarrant Counties), the Haslet Common School District No. 97 (of Denton
and Tarrant Counties), and the Rhome Independent School District (of Wise County).

4, Shortly thereafter, in 1949, the Fairview Common School District No. 39 (of Wise County)
was consolidated with NISD. '

5; Carroll Independent School District (hereinafter “CISD”) or its predecessor district, Carroll
School District No. 99 did not contest the creation of NISD in 1949,

6. NISD's boundaries after the consolidation election in 1949 contained a total of 126,062
acres of land, more or less, and was a consolidation of all the lands comprising the school districts
known before the consolidation, not the boundaries of a particular county.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 1jPage

TS ahhe 2974

99
7. In August 1901, the Commissioners Court of Denton County, Texas found that several of
the school districts’ boundaries in Denton County were vague and uncertain and that it was
“necessary that they [the boundaries of the school districts] should be defined with certainty.”

8. ‘The Denton County Commissioners Court then ordered that the boundaries of the several
school districts be corrected and the Commissioners Court of Denton County issued an order
describing ninety one (91) school districts in Denton County by metes and bounds,

9, The August 1901 order of the Denton County Commissioners Court included the following
districts that eventually would become part of NISD:

a. Elizabeth No. 58

b. Roanoke No. 59

c. Walnut Grove No. 73
d, Helm No. 83

e. Avondale No, 90

10. The Denton County Commissioners Court Order creating the Walnut Grove No, 73
contains a descriptor(s) that places its boundary on the White Line (as defined below).

11. In July 1909, the Denton County Commissioners Court approved the election and
incorporation of Roanoke Independent School District which contains a descriptor that places its
boundary on the White Line and includes a sketch map of the Roanoke that denotes the south line
of Denton County was the White Line.

12. In January 1949, W.F. Anderson sold two tracts of land to the United States of America.
One tract was solely within Denton County and the other tract was solely within Tarrant County,
The tracts are near the Disputed Area (as defined below).

13. In the deeds, Anderson and the United States of America recognized the north line of the
A.S. Harris Survey and the south line of the John Guess Survey as the Tarrant County and Denton
County line in 1949, Surveyor Wilson's retracement survey of the White Line passes 33.70 feet
south of the common east comer of the Harris and Guess Surveys.

14. In 1910, the Tarrant County Commissioners Court laid out metes and bounds of ninety
three (93) districts. The following districts eventually would become part of NISD:

a. Haslet No, 3
b. Henrietta No. 4
¢. Avondale No. 90

15. | The metes and bounds description of Lonesome Dove No. 7 contains the following call:
"thence North to Denton County line; thence west with Denton County line to S.E. corner of F. L.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 2}P age

2975

100
Harris Survey.” The northwest corner of the A. §. Harris Survey is common with the southeast
comer of the F, L. Harris Survey. (See FOF 12-13). The W. C. Wilson retracement of the White
Line places the White Line 90.9 feet south of the southeast comer of the F, L. Harris Survey, The
Gilley Line survey in 2004, is 1677.81 feet north of the southeast comer of the F. L. Harris Survey.

16. In May 1932, the Denton County Commissioners Court ordered and recognized the Haslet
Common School District, also referred to the Common School District No. 97, which was
established in 1917 and described its boundaries by metes and bounds. Haslet Common School
District later became part of NISD.

17. The boundary description of the Haslet Common School District provides three direct
connections to the county line from comers of Original] Land Surveys making it possible to locate’
the Tarrant County and Denton County boundary line on the ground in 1932. Two of the calls
place the Tarrant/Denton County line in close proximity to the White Line.

18. In 1947, Roanoke Independent School District was created by the Denton County
Commissioners Court by consolidating Elizabeth No. 58, Walnut Grove No. 73, and Roanoke ISD.
The Roanoke ISD was later consolidated into NISD in 1949.

19. | The NISD boundary description as approved in the 1949 consolidation election states:

a. "BEGINNING at the Southeast corner of Wise County, same being the Southwest Corner
of Denton County and on the North Boundary Jine of Tarrant County, a point within the
Matthew Ashton Survey; ...”

b. " .., THENCE East to the Northeast corner of said R.A. Smith Survey;

THENCE South to the County line between Denton and Tarrant Counties;

THENCE West along said County Line to a point in said line due North of the Northwest
corner of the M. Hunt Survey in Tarrant County... "

20. CISD was incorporated in 1959 after an election ordered by the County Judge of Tarrant
County based on a petition filed on February 23, 1959 by the requisite number of inhabitants of
Carroll Common School District #99 (the “Petition").

21. The Petition contains a boundary description of the area to be incorporated as CISD which
was declared by the petitioners of the Petition to be "definite."

22, OnMarch 4, 1959, the County Judge of Tarrant County ordered an election for the purpose
of determining whether Carroll Common Schoo! District #99 should be incorporated as the Carroll
Independent School District.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 3| Page

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101
23. ‘In the March 4. 1959 Order, the County Judge of Tarrant County declared and found the
field notes in the Petition “contain a definite description by metes and bounds of the District
proposed to be so incorporated ..., "

24, The County Judge of Tarrant County ordered that the Petition’s "definite description" of
the boundaries of the Carroll Common Schoo! District #99 be attached to his order calling the
election whether the Carroll Common School District #99 should be incorporated as the Carroll
Independent School District.

25. On March 23, 1959, the County Judge of Tarrant County declared passage of the
incorporation election ordering the incorporation of Carroll Independent School District and
ordering the boundaries of Carroll Independent School District to be the same as those set forth in
the Petition and the March 4, 1959 Order calling the election, both of which were declared by the
County Judge of Tarrant County as having a "definite description” of the boundaries.

26. CISDis located entirely in Tarrant County.

27. The CISD boundary description as approved in the 1959 incorporation election states:

a "Beginning in the North line of Tarrant County at a point directly north of the most
northerly, northwest comer of the John L. Whitman Survey in Tarrant County; ..."

b. " .. THENCE North to a point in the NOI Ih line of Tarrant County..."

28. George White ("White") surveyed and marked on the ground the boundary line between
Denton and Tarrant Counties in December 1852 and January 1853 (the "White Line”).

29. White returned his field notes to Denton County and the field notes were later filed with
the General Land Office.

30. Asof 1959, White's field notes were the only field notes filed with the General Land Office
that described the Tarrant/Denton County line,

31. CISD has never objected to the George White field notes filed with the General Land
Office.

32. Before 2003, CISD did not object to the field notes of NISD that NISD filed with the Texas
Education Agency ("TEA").

33. On October 10, 2003, NISD filed an updated boundary description of NISD via a survey
and map from a qualified surveyor that defines the boundaries of NISD along the White Line.

34. The White Line can be found on the ground.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 4|Page

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102
35. | The White Survey of the boundary line between Denton and Tarrant Counties conformed
to the legislative direction contained in "An Act Better Defining the Boundaries of Denton
County," approved January 1852, 4th, Leg., R.S., 1852 Tex. Gen. Laws 32, reprinted in 3 H.P.N.
Gammel. The Law's of Texas 1822-1897, at 910 (Austin, Gammel Book Co. 1898).

36. Aretracement survey of the White Line, as marked on the ground and recorded by White's
field notes, which are on file in the Texas Genera! Land Office, was retraced by William C. Wilson,
Jr. a Licensed State Land Surveyor, in 1999 and such retracement locates the position of the White
Line with the precision required by the Texas board of Professional Land Surveying.

37. The first milepost on the White Line as reestablished by William C. Wilson, Jr. is at a point
located on the Texas Coordinate System of 1927 — North Central Zone, y = 479483,2 feet
(northing): x = 2139631.6 feet (easting).

38. The second milepost on the White Linc as reestablished by William C. Wilson, Jr. is at a
point located on the Texas Coordinate System of 1927 — North Central Zone, 7 = 479586.8 feet
(northing; x = 2134296.3 (easting).

39. The third milepost on the White Line as reestablished by William C. Wilson, Jr. is at a
point located on the Texas Coordinate System of 1927 - North Central Zone, y ~ 479696.8 feet
(northing); x = 2128998.6 feet (easting).

40. The fourth milepost on the White Line as reestablished by William C. Wilson, Jr. is ata
point located on the Texas Coordinate System of 1927 — North Central Zone, y = 479806.9 feet
(northing); x = 2123700.9 feet (easting).

41, The fifth milepost on the White Line as reestablished by William C, Wilson, Jr. is at a point
located on the Texas Coordinate System of 1927 - North Central Zone, y = 479916.9 feet
(northing); x = 2118403.2 feet (easting).

42, The sixth milepost on the White Line as reestablished by William C. Wilson, Jr. is ata
point located on the ‘Texas Coordinate System of 1927 — North Central Zone, y = 480026.9 feet
({northing); x = 2113105.5 feet (easting).

43. The seventh milepost on the White Line as reestablished by William C. Wilson, Jr. is at a
point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480136.9 feet
({northing); x = 2107807.8 feet (casting).

44. The eighth milepost on the White Line as reestablished by William C. Wilson, Jr. is at a

point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480218.9 feet
(northing); x = 2102442.5 feet (easting).

FINDINGS OF FACT AND CONCLUSIONS OF LAW 5|Page

2978

103
45. The ninth milepost on the White Line as reestablished by William C. Wilson, Jr. is at a
point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480300.9 feet
(northing); x = 2097077.1 feet (easting).

46. The tenth milepost on the White Line as reestablished by William C. Wilson, Jr. is at a
point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480439.8 feet
(northing); x = 2091771.4 feet (casting).

47. The eleventh milepost on the White Line as reestablished by William C, Wilson, Jr. is ata
point located on the Texas Coordinate System of 1927 - North Central Zone, y = 480578.7 feet
(northing); x = 2086465.7 feet (easting).

48. The twelfth milepost on the White Line as reestablished by William C. Wilson, Jr. is at a
point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480717.5 feet
(northing); x = 2081159.9 feet (easting).

49. The thirteenth milepost on the White Line as reestablished by William C. Wilson, Jr, is at
a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480856.4 feet
(northing); x- 2075854.2 feet (easting).

50. The fourteenth milepost on the White Line as reestablished by William C, Wilson, Jr. is at
a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 480995.3 feet
(northing); x = 2070548.5 feet ( easting).

$1. The fifteenth milepost on the White Line as reestablished by William C, Wilson, Jr. is ata
point located on the Texas Coordinate System of 1927 - North Central Zone, y = 481134.2 feet
(northing); x = 2065242.8 feet (easting).

52. The sixteenth milepost on the White Line as reestablished by William C. Wilson, Jr. is at
a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 481273.1 feet
(northing); x = 2059937.1 feet (easting).

53. The seventeenth milepost on the White Line as reestablished by William C. Wilson, Jr. is
at a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 481412.0
feet (northing); x = 2054631.3 feet (casting).

$4, The eighteenth milepost on the White Line as reestablished by William C, Wilson, Jr. is at
2 point located on the Texas Coordinate System of 1927 — North Central Zone, y = 481550.9 feet
(northing); x = 2049325.6 feet (casting). ;

55. The nineteenth milepost on the White Line as reestablished by William C. Wilson, Jr. is at

a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 481689.8 feet
(northing); x = 2044019.9 feet ( easting).

FINDINGS OF FACT AND CONCLUSIONS OF LAW 6|Page

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104
56. The twentieth milepost on the White Line as reestablished by William C. Wilson, Jr. is at
a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 481828.6 feet
(northing); x = 2038714.2 feet (casting).

57, The twenty-first milepost on the White Line as reestablished by William C. Wilson, Jr. is
at a point located on the Texas Coordinate System of 1927 — North Central Zone, y = 481967,5
feet (northing); x = 2033408.5 feet ( easting).

58. The Tarrant County Appraisal District ("TAD") has appraised property for CISD since
1981 and Woody Boykin is the creator of CISD's tax map system that is maintained by TAD.

59. TAD first created the tax map system for CISD and other taxing units in Tarrant County
beginning in 1 981. This tax map system shows the school district boundaries for those school
districts TAD represents, including CISD.

60. In creating the tax map system showing CISD’s boundaries, TAD relied on data supplied
by various taxing units, including the counties schoo! districts and cities involved; specifically,
TAD relied on the data supplied by CISD.

61. The tax map system created by TAD is important because these maps affect the accuracy
of the district's appraisal records and the eventual taxation of the area's residents, because the tax
assessors for the school districts rely on the accuracy of TAD's appraisal records for assessing
taxes, and because these tax maps affect the tax rolls of the entities TAD represents,

62. Pursuant to its statutory duties, TAD has continuously identified NISD as the only district
taxing unit in the Disputed Area, without interpretation or objection, since 1981. TAD has never
identified CISD as the taxing jurisdiction of any tract of land located in the Disputed Area.

63. TAD continues to identify NISD as the taxing jurisdiction in the Disputed Area because
this has been the "status quo” since TAD was created in 1981.

64. TAD did not identify CISD as the taxing jurisdiction in the Disputed Area after the Tarrant
County v, Denton County decision was because the school district linc had not moved as a result
of that decision.

65. TAD has never been ordered to change NISD’s designation as the proper taxing jurisdiction
in the Disputed Area.

66. In establishing CISD's boundary with NISD for the appraisal records and tax map system
that TAD has historically used since 1981, the boundary line was where CISD told TAD it was,

FINDINGS OF FACT AND CONCLUSIONS OF LAW 7[ Page

2980

105
67, Before the Tarrant County v. Denton County lawsuit, the White Line was the only
boundary line recognized by. and filed of record in, the Texas General Land Office separating
Denton and Tarrant Counties.

68. In 1986, Tarrant County, Denton County, Dallas County, and Collin County entered into
an Interlocal Agreement regarding, inter alia, the Tarrant County and Denton County line.

69. | NISD was not a party to the Interlocal Agreement.

70. | NISD was nota third party beneficiary of the Interlocal Agreement.

71. CISD was not a party to the Interlocal Agreement.

72. CISD was not a third party beneficiary of the Interlocal Agreement.

73. The Tarrant County v. Denton County lawsuit determined the true boundary between
Tarrant County and Denton County. The truc boundary between Tarrant County and Denton

County is known as the Gilley Line.

74. CISD has admitted that it does not seek to give retroactive effect to the Tarrant County y.
Denton County lawsuit.

75. NISD was nota party to the Tarrant County v, Denton County lawsuit.
76. NISD did not intervene in the Tarrant County v. Denton County lawsuit.
77. CISD was nota party to the Tarrant County v. Denton County lawsuit.
78. The Gilley Line did not exist in 1949 and did not exist until 2004.

79. Both CISD and NISD claim the area between the Gilley Line and the White Line which
includes the taxing line between NISD and CISD ("Disputed Area").

80. The Britain exhibit depicts the Gilley Line, the White Line, and the taxing line.

81. Before 2004, CISD agreed that the Disputed Area was in NISD.

82. NISD and CISD agreed by custom and usage that the Disputed Area is in NISD.

83. The agreement of CISD and NISD that the Disputed Area is in NISD may be implied or

expressed. Duval County Ranch Co. v. Foster, 318 S.W.2d 25, 30 (Tex. Civ. App. - San Antonio
1958, writ refd n.r.e.); Gulf Oil Corp. v. Marathon, 152 $.W.2d 711, 714 (Tex, 1941).

FINDINGS OF FACT AND CONCLUSIONS OF LAW 8) Page

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106
84. CISD has judicially admitted that the 1949 NISD Consolidation Order is not ambiguous.

85. CISD has judicially admitted that the field notes m the 1949 NISD Consolidation Order
describing the NISD and CISD common boundary were unambiguous.

86, Before 2004, CISD never asserted that its common boundary with NISD was located on
the Gilley Line.

87. Before 2004, CISD never asserted that its common boundary with NISD was not the White
Line.

88. Before 2004, CISD never asserted its common boundary line with NISD was doubtful,
uncertain, or disputed.

89. CISD has admitted this lawsuit is an attempt to move the CISD and NISD common
boundary line to the Gilley Line from the former boundary of CISD and NISD.

90. CISD never sought to annex the Disputed Area in compliance with $13.05]. TExas
EDUCATION CODE. .

91, CISD did not exhaust its administrative remedies through the Commissioner of Education
in compliance with the Texas Education Code before filing this lawsuit.

92, Before 2004, CISD made statements that the Disputed Area was in NISD and intended that
others act in good faith upon such statements.

93. Before 2004, the previous acts of the NISD and its Board of Trustees in the Disputed Area
were validated by the Texas Legislature.

94. The acts of NISD Board of Trustees were not and are not ultra vires in the Disputed Area.

95. CISD's corporate representative is Dr, David Flatys, who has been superintendent of CISD
since 2005.

96. CISD, through its corporate representative and superintendent, admits:

a. Both CISD and NISD have considered the Disputed Area to be located in NISD from 1959
through 2005.

b. From 1959 to the date this lawsuit was filed, CISD was not aware of any attempts by CISD
to levy and collect taxes in the Disputed Area.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 9[Pace

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107
c. From 1959 to the date this lawsuit was filed, CISD allowed NISD and did not object to
NISD conducting and engaging in taxing, educating students, holding elections and issuing bonds
in the Disputed Area.

d, From 1959 until the date this lawsuit was filed, CISD acknowledges that NISD provided a
free education to the children who resided within the Disputed Area; NISD provided busing of
children who resided within the Disputed Area; and that CISD did not transport the children within
the Disputed Area.

¢. In 2003, CISD, by action of its Board of Trustees, acknowledged that the students living
in the Disputed Area were not residents of CISD (i.c., the students were, instead, residents of
NISD) by modifying its interdistrict Board Policy FDA (LOCAL) to permit these NISD students
(i.e., those who reside in the Disputed Area) to attend CISD's schools as "transfers", but only when
"space is available." However, these NISD "interdistrict” (as opposed to "intradistrict") transfer
students are not provided free transportation services that CISD resident students receive. CISD's
Board Policy FDA (LOCAL) only applies to transfers between school districts permitting
enrollment of "out-of-district” students - in other words, this policy modification shows CISD itself
considered the students residing in the Disputed Area to be "out-of-district."

f. CISD continues to respect and act in accordance with where the original line was located,

g. CISD believes the boundary line between NISD and CISD moved north of the original line
to the Gilley Line.

h. Since the 1950's, NISD has held multiple school district elections in which the
landowners/residents in the Disputed Area voted to elect members of the Board of Trustees of the
NISD. CISD has never held school district elections in the Disputed Area to elect members of the
Board of Trustees of CISD.

i, Since the 1950's, NISD has held numerous bond elections for which the land in the
Disputed Area could be taxed, to the extent necessary, to pay for those bonds. CISD has never held
a bond election for which the land in the Disputed Area would be taxed by CISD to pay for those
bonds.

j. Since the 1950's, NISD has issued numerous bonds for which the NISD pledged that the
land in the Disputed Area could be taxed, to the extent necessary, to pay for the bonds. CISD has
never undertaken to sell bonds pledging land in the Disputed Area.

97, CISD seeks to move the CISD and NISD common boundary line to the Gilley Line.

98. CISD has never held bond elections or school board trustee elections in the Disputed Area.

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99, Carroll Common School District #99 did not file an election contest lawsuit in accordance
with the law challenging (1) the 1949 NISD consolidation election or (2) its boundaries or the 1959
incorporation of CISD.

100, Tax revenue generated by ad valorem taxes assessed and collected in the Disputed Area
has never been applied to pay for bonds issued by CISD.

10]. CISD has never assessed ad valorem taxes on real property within the Disputed Area.

102. Before filing this lawsuit, CISD never treated students in the Disputed Area as residents
but instead as transfer students subject to the transfer and transportation policies of CISD.

103. The circumstances clearly demand the application of estoppel to prevent manifest injustice.
City of White Settlement v. Super Wash, Inc., 198 S.W. 3d 770, 774 (Tex. 2996), Under the totality

of the circumstances in this case justice, honesty, and fair dealing require the application of
estoppel. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 223 (Tex. App.- San Antonio 2003, no

pet.).
104. An award of attorneys’ fees to NISD would be equitable and just.

105. NISD incurred reasonable and necessary attorneys’ fees in the amount of $850,055.00 for
services rendered through the trial of this case.

106, . A reasonable and necessary attomeys’ fees for NISD in the event CISD unsuccessfully
appeals to the court of appeals would be an additional $100,000.00.

107, A reasonable and necessary attorneys’ fees for NISD in the event of filing or responding to
a Petition for Review to the Texas Supreme Court is an additional $75,000.00.

108. A reasonable and necessary attorneys' fees for NISD in the event of a successful appeal to
the Supreme Court of Texas would be an additional $50,000.00.

109, All findings of fact shall also be deemed to be conclusions of law. To the extent any finding
of fact is 2 conclusion of law or is a mixed question of law and fact, the same is concluded as a
matter of law.

CONCLUSIONS OF LAW

l, CISD's claims for declaratory relief and ultra vires are denied.

2, NISD's counterclaim for declaratory relief states a claim for affirmative relief which is
independent of CISD's claim for relief.

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3. NISD’s counterclaim for declaratory relief is granted,

4. The common boundary line between NISD and CISD located on the "County line between
Denton and Tarrant Counties” as described in the NISD consolidation election in 1949 and ordered
and approved by the Denton County Commissioners Court in 1949 is the White Line as retraced
by William C, Wilson in 1999, a description on the ground of which is found in Findings of Fact
Nos, 37-57. See also Finding of Fact No. 33.

= CISD claims are an attempt to move the CISD and NISD common boundary line to the
Gilley Line from the White Line.

6. CISD never sought to annex the Disputed Area in compliance with §13.051, Texas
EDUCATION CODE.

7, The Texas Education Code is a pervasive regulatory scheme that covers inaccurate
boundaries, transfer of territory, and the transfer of students.

8. The Texas Education Code is the exclusive jurisdiction for transferring territory between
school districts.

9. CISD never sought relief or exhausted its administrative remedies for transferring territory
through the Texas Education Code and its administrative processes and therefore, this Court is
without jurisdiction to grant CISD's declaratory relief.

10. CISD failed to exhaust its administrative remedies with the Commissioner of Education
for all of its claims arising under the school laws of Texas.

tl. The place at which the original surveyor identified the line for the NISD boundary in 1949
determines the location of the "County line between Denton and Tarrant Counties" which is

referenced in the property description of the 1949 NISD consolidation election. (City of Carrollton
vy. Duncan, 742 S.W.2d 70, 72 (Tex. App.- Ft. Worth 1987, no writ.)

12. Any evidence which is the best available tendering to establish the footstep of the original
surveys is admissible for such purpose. Kardell v. Crouch, 326 S.W.2d 869, 879 (Tex. Civ, App.-
Austin 1959, writ refd n.r.e.).

13. The ancient maps and plats admitted in this case are admissible evidence to show the
location or boundaries.

14. Boundaries may be proved by hearsay evidence. Hamill v. Bahr, 271 S.W. 2d 319, 321
(Tex. Civ. App.- Galveston 1954, no writ).

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15. The footsteps of the original surveyor, if they can be ascertained, should be followed...
However, if the location of the actual footsteps of the surveyor cannot be established with
reasonable certainty, all the surrounding facts and circumstances should be considered in order to
arrive at the purpose and intent of the surveyor who made the original surveyor. TH Jnvestments.
Inc. v. Kirby Inland Marine, LP, 218 $.W. 3d 173, 204 (Tex. App.- Houston [141h Dist.] 2007,
pet. denied).

16. | The property description of the boundary described in the CISD incorporation election
approved by the Tarrant County Judge in the 1959 CISD incorporation election is definite and thus
CISD's claims are a collateral attack on the 1959 CISD incorporation election and order.

17, If the descriptors "beginning in the North line of Tarrant County at a point directly north
of the most northerly, northwest comer of the John L, Whitman Survey in Tarrant County; ... " and
" ... THENCE North to a point in the North line of Tarrant County .., " as described in the CISD
incorporation election and ordered by the Tarrant County Judge in 1959 are uncertain,
unambiguous, or did not exist in 1959, the ambiguity is latent and subject to rules of construction
and extrinsic evidence to properly interpret the description and to give effect to the parts of the
description that will accomplish, rather than defeat, the intention of the authors of the boundary
descriptor.

18. The property description of the boundary described in the NISD consolidation election
approved in the 1949 was defined with certainty.

19. If the descriptor "County line between Denton and Tarrant Counties" set forth in the NISD
boundary established by the Denton County Commissioners Court in 1949 is uncertain,
ambiguous, or did not exist in 1949, the ambiguity is latent and subject to rules of construction and
extrinsic evidence to properly interpret the description and to give effect to the parts of the
description that will accomplish, rather than defeat, the intention of the authors of the boundary
descriptor,

20, If the descriptors of the 1949 Denton County Commissioners Order creating NISD or the
1959 Tarrant County Judge's Order incorporating CISD contains an ambiguity, the Court may rely
on rules of construction and extrinsic evidence to interpret properly the description and to give
effect to the description that will accomplish rather than defeat the intention of the partics.
Universal Home Builders, Inc. v. Farmer, 327 S.\W.2d 737, 742 (Tex. Civ. App. - Tyler

1964, no writ).

21. The evidence shows that the descriptor "County line between Denton and Tarrant
Counties" set forth in the NISD boundary established by the Denton County Commissioners Court
in 1949 is the White Line,

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22, CISD's claims are barred because CISD failed to meet the jurisdictional requirements of
standing or providing proper and timely notice of its contest of the 1948 and 1949 elections
creating the NISD.

23. CISD's claims are barred because NISD's boundary as it existed m 1949 has been validated
by law.

24. Before 2004, all acts of NISD and its Board of Trustees were validated by law.

25. CISD's claims that the common boundary line between CISD and NISD is the Gilley Line
fails because the judgment in the Tarrant County y. Denton County lawsuit may not be applied
retroactively to the CISD and NISD boundary in violation of Art. 1. $16, TEXAS CONSTITUTION
and §311.022, GOVERNMENT CODE.

26. ‘The Gilley Line does not apply retroactively.

27. Neither NISD nor CISD was a party to, nor bound by, the Interlocal Agreement nor the
Tarrant County vy. Denton County Lawsuit.

28. The Tarrant County v. Denton County Lawsuit did not rule on the boundaries of CISD nor
NISD.

29. CISD's claims are barred because it lacks standing to collaterally attack the election results
from 1949 and the Wise, Tarrant and Denton County Commissioners Order(s) approving and
creating NISD in 1949.

30. CISD's claims are barred because it lacks standing to collaterally attack the election results
from 1959 and the Tarrant County Judges! Order(s) approving and consolidating CISD in 1959.

31. CISD’s claims are proprietary functions.

32. CISD's claims are barred by the doctrine of boundary of ratification/acquiescence.
33. CISD’s claims are barred by the doctrine of boundary of estoppel.

34. CISD’s claims are barred by the doctrine of boundary by agreement.

35. CISD's claims are barred by implied agreement from asserting changes to the common
boundary line being the White Line.

36. CISD's claims are barred by promissory estoppel.

37. CISD's claims are barred by laches,

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38. CISD's defenses of governmental immunity, collateral estoppel, res judicata, stare decisis,
and judicial estoppel are denied,

39. CISD's claims for attorneys’ fees are denied.

40. NISD is entitled to recover its reasonable and necessary attorneys’ fees for the trial and any
appeal of this action pursuant to the Texas Uniform Declaratory Judgments Act. TEX. Civ, PRAC,
& REM. Cove §37.001, ef seg. The award of these fees to NISD is equitable and just.

41. NISD is entitled to recover post judgment interest on the total sum rendered in the Final

Judgment at the statutory rate of five percent (5%) per annum, compounded annually, from the
date of the Final Judgment until paid,

SIGNED this 13 day of AM , 2018.

Ses eee

JUDGE PRESIDING

FINDINGS OF FACT AND CONCLUSIONS OF LAW is|Page

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Exhibit B

Page 4-Northwest Independent School District Boundary Lines

Thence E to the NE corner of said Caspary Survey;

Thence NEasterly in a county road to the NW corner of the William Gibson Survey;
Thence E to the NE corner of the B.W. Wines Survey;

Thence $ to the $B comer of said Wines Survey in the N line of the J.T. Stewart Survey;
Thence E 251 veras to the center of the N line of said Stewart Survey;

Thence S through the center of said J.T. Stewart survey and the Wilson Medlin Survey to the $
line of said Medlin Survey;

Thence W to the NW corner of said R.W. Allen Survey;

Thensé S to the center off the channel éf Denton Creek:

Thence down the channel of Denton Creek to the N line of the R.A. Smith Survey;
Thence E to the NE comer of said R.A. Smith Survey;

Thence Southerly, with the east line of the R.A. Smith Survey, Abstract No. 1159, to a point that
intersects Denton and Tarrant Counties line that was reestablished by said W.C. Wilson, Jr,
L.S.L.S., between the fourth and fifth milepost monuments, fourth milepost bears South 88° 48'
38" East, with a Texas State Plane Coordinate System of NAD-27 — North Central Zone, Y =
479806.9 feet (northing), X = 2123700.9 feet (easting);

Thence North 88° 48' 38" West, with said County Line passing the Grapevine-Colfeyville 1.8.D,
and the Carroll 1.S.D. line that intersects said County Line at a point directly north of the most
northerly, northwest corner of the John L. Whitman Survey, Tarrant County and continuing to the
fifth milepost monument, with a Texas State Plane Coordinate System of NAD-27 — North
Central Zone, Y = 479916.9 feet (northing), X = 2118403.2 feet (casting);

Thence North 88° 48° 38" West, continuing with said County Line, a distance of 5298.84 feet to
the sixth milepost monument, with a Texas State Plane Coordinate System of NAD - 27 — North
Central Zone, ¥ © 480026.9 feet (northing), X = 2113105.5 feet (easting);

Thence North 88° 48' 38" West, continuing with said County Line, a distance of 5298.84 feet to
the seventh milepost monument, with a Texas State Plane Coordinate System of NAD —27 —
North Central Zone, Y = 480136.9 feet (northing), X = 2107807.8 feet (easting);

Thence North 89° 07" 28" West, continuing with said County Line, a distance of 5365.93 feet to
the eighth milepost monument, with a Texas State Plane Coordinate System of NAD —27 — North
Central Zone, Y = 480218.9 feet (northing), X = 2102442.5 feet (easting);

Thence North 89° 07' 28" West, continuing with said County Line, a distance of 5366.03 fect to

the ninth milepost monument, with a Texas State Plane Coordinate System of NAD -— 27 — North
Central Zone, Y = 480300.9 feet (northing), X » 2097077.1 feet (easting);

NISD/CISD - 2950 |

114

Page 5-Northwest Independent School District Boundary Lines

Thence North 88° 30' 01" West, with said County Line passing the Carroll I.S.D. and the Keller
LS.D, line that intersects said County Line at a point that is 150 varas east of the southwest comer
of the J. Childress Survey and directly north of the south line of said J. Childress Survey and
continuing to a point on said County Line from which the tenth milepost monument bears North
88° 30' 01" West, with a Texas State Plane Coordinate System of NAD — 27 — North Central
Zone, ¥ = 480439.8 feet (northing), X = eee
of the northwest ¢orner of the M. Hunt Survey, Tarrant County, Texas;

Thence S$ passing the NW corner of said M. Hunt Survey to a point 1425 varas S of the NW
corner of said Hunt Survey;

Thence W to the E line of the Jesse Gibson Survey;

Thence N 475.2 varas;

Thence W 950.4 varas;

Thence S 950.4 varas to the S line of the Jesse Gibson Survey;
Thence W to the NE corner of the Gustavus Gilbert Survey;
Thence S$ 600 varas;

Thence W to the E line of the right-of-way of the T@PRR Co.;

Thence N 24 degrees 50 minutes E with the E line of said right-of-way to the S line of the
Francisco Cuella Survey; .

Thence W at 950.4 varas, the NW comer of the J.J. Roberts Survey, in all 1642 varas;
Thence W on a line projected to the SE corner of the Z.D. Davis Survey;

Thence W 73 varas;

Thence S 424 varas to a point in the N line of the T. Logan Survey;

Thence NE 68 degrees 80 varas;

Thence $ 1924 varas to the SE comer of the G.W. Parker Survey;

Thence W 1163 varas to the SW corner of same;

Thence N 1250 varas to the NW corner of same and the NE corner of the W. Houston Survey;
Thence S 68 degrees 10 minutes W 594 varas to the NW corner of said W. Houston Survey;

Thence S 940 varas to the SE corner of the H. Cox Survey and the NW comer of the F. Cuella
Survey;

Thence S in the E line of said survey to the NE corner of the J.H. Eastman Survey;

+

NISD/CISD - 2951 |

115