JNC PARTNERS DENTON, LLC v. City of Denton

SUE WALKER, J.

dissenting.

Because I would hold that JNC Partners Denton, LLC has shown a probable right to compel arbitration under section 43.052(i), I respectfully dissent.

The primary issue in this appeal— whether JNC has shown a probable right to compel arbitration under local government code subsection 43.052(f) — involves the proper statutory construction of that subsection. See Tex. Loc. Gov’t Code Ann. § 43.052© (Vernon Supp.2005). That subsection provides in pertinent part:

(i) A municipality may not circumvent the requirements of this section by proposing to separately annex two or more areas described by Subsection (h)(1) if no reason exists under generally accepted municipal planning principles and practices for separately annexing the areas. If a municipality proposes to separately annex areas in violation of this section, a person residing or owning land in the area may petition the municipality to include the area in the municipality’s annexation plan. If the municipality fails to take action on the petition, the petitioner may request arbitration of the dispute.

Id.

Our primary goal in interpreting a statute is to ascertain and to effectuate the legislature’s intent. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). In doing so, we begin with the statute’s plain language before *795resorting to rules of construction. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). We begin with the plain language because we assume that the legislature attempted to say what it meant; therefore, the statute’s words should be the surest guide to the legislature’s intent. Fitzgerald, 996 S.W.2d at 866.

The majority construes local government code section 43.052(i) as conferring a statutory right of arbitration only when a municipality proposes the concurrent annexation of two or more areas falling within the section 43.052(h) exception for mandatory inclusion in the municipality’s three-year annexation plan. Tex. Loc. Gov’t Code Ann. § 43.052(h)-® (Vernon Supp.2005). This construction by the majority renders the right to arbitration codified in section 43.052® meaningless because so long as the municipality sequentially annexes each individual 43.052(h)(1) area — never implementing concurrent annexation proceedings for two section 43.052(h)(1) areas — the right to arbitration is never triggered. The municipality may simply sequentially and continuously annex section 43.052(h)(1) areas, circumventing subsection (c)’s mandatory requirement that “[a] municipality shall prepare an annexation plan that specifically identifies annexations that may occur beginning on the third anniversary of the date the annexation plan is adopted.” Id. § 43.052(c) (emphasis added).

Indeed, that is what the City did in this case; the City’s three-year annexation plan is not an annexation plan at all, providing only that the City “has determined that any anticipated annexations in the foreseeable future will be exempt from the annexation plan ... pursuant to section 43.052(h).” The facts stipulated to by the parties at the temporary injunction hearing establish that the City had annexed multiple areas pursuant to section 48.052(h) within the three years preceding its proposed annexation of the area that included JNC’s property.1 Thus, the record shows that the City circumvented the statute’s mandatory requirement that it prepare a three-year annexation plan by proposing and by accomplishing the annexation of two or more subsection (h)(1) areas during the purported three-year plan. And the City did not allege, argue, or prove in the trial court that any reason exists under generally accepted municipal planning principles and practices for separately annexing the “North Denton Annexation” that includes JNC’s property.

Accordingly, I would decline to read the word “concurrent” into local government code subsection 43.052(i). I would hold that the stipulated facts establish that the City proposed to and did separately annex areas in violation section 43.052 and that, consequently, JNC has shown a probable right to compel arbitration under section 43.052(i).2 Consequently, I would hold that the trial court abused its discretion by denying JNC’s request for temporary in-junctive relief.

. In 2005, the City proposed the AshGrove Cement Annexation. Although that proposed annexation was withdrawn after two public hearings, it had been proposed concurrently with the present annexation. In 2002, the City annexed 104 acres owned by TRIO Operating Company and the Robson Ranch North area.

. I agree with the majority that JNC satisfied the other two elements necessary to obtain a temporary injunction. See, e.g., Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002).