dissenting.
I respectfully dissent. I would reverse and enter a take nothing judgment. I analyze the case in the following manner.
THE BURDEN OF PERSUASION
Port Arthur originally filed the action for declaratory judgment seeking to declare the Bridge City annexation ordinances void. Port Arthur later filed an “Amended First Supplemental Petition” and the Quo War-ranto and first amended petition. Port Arthur sought the relief thus assuming the burden of persuasion that the annexations were void. They began their attack based upon the prior judgment. If they proved it was res judicata or that it collaterally es-topped Bridge City, then no further proof was required. However, if they proved neither, then they were required to prove that the annexations were within their extraterritorial jurisdiction (“ETJ”). To do this, they had to establish their ETJ as being contiguous and within 2>lh miles of their corporate boundaries. TEX.LOC. GOV’T CODE ANN. sec. 42.021(4) (Vernon 1988). Clearly, Bridge City assumed no burden of persuasion since Port Arthur did not attack the ordinances on any procedural defects.
RES JUDICATA & COLLATERAL ESTOPPEL
Our Supreme Court in Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816 (Tex.1984) said at 818:
Res judicata is frequently characterized as claim preclusion because it bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in the prior suit, (citation omitted) When a prior judgment is offered in a subsequent suit in which there is identity *236of parties, issues and subject matter, such judgment is treated as an absolute bar to retrial of claims pertaining to the same cause of action on the theory that they have merged into the judgment, (citations omitted)
... Collateral estoppel is narrower than res judicata. It is frequently characterized as issue preclusion because it bars relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based upon the same cause of action, (citations omitted)....
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A party seeking to invoke the doctrine of collateral estoppel must establish (1) the facts sought to be litigated in the second trial were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action, (citations omitted).
The majority states “it is clear that the trial court did not differentiate between the doctrines of collateral estoppel or res judi-cata” then adopts appellees’ contentions that the trial judge based his judgment under res judicata rather than collateral estoppel. Conclusion of law number 62 says the prior judgment is “preclusive of the issues.” Conclusion of law number 68 acknowledges the City of Bridge City was not a party to the prior proceeding, but “is bound by the determinations therein made.” These indicate to me that the trial judge applied the principles of collateral estoppel rather than res judicata.
The distinction made between claim preclusion and issue preclusion is not simply a technical one. In the instant suit, the claim made by Port Arthur is that Bridge City’s annexation was void. An issue within that claim was generally whether the annexation included property located within Port Arthur’s ETJ and specifically whether the Gulf States’ plant was included within Port Arthur’s ETJ and Bridge City’s annexation. Under a collateral estoppel analysis, the uncontroverted evidence is that the prior judgment was an agreed judgment and there was never any contested adversarial trial, thus the issues in the second trial were not fully and fairly litigated in the prior suit.
Under either analysis, there was not an identity of parties or their privies. In Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex.1971), Justice Steakley, at 363 stated:
... It has been emphasized that privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts, (citations omitted) Also, that privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right, (citations omitted)....
... Due process requires that the rule of collateral estoppel operate only against persons who have had their day in court either as a party to the prior suit or as a privy, and, where not so, that, at the least, the presently asserted interest was actually and adequately represented in the prior trial.
No one argues that Bridge City was not a party to the prior suit. Therefore, the majority has to be implying that Bridge City is a privy or successor in interest to the City of Orange. There is nothing in the record to support such an implication and certainly the trial judge made no such finding or conclusion.
Even if the majority has correctly characterized the holding as res judicata, a judgment in one suit will not operate as res judicata to a subsequent suit where, in the interval, facts have changed or new facts have occurred. Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948 (Tex.1990). The City of Bridge City did not exist at the time of the prior judgment. This alone is a new or changed fact.
ESTABLISHMENT OF THE EXTRATERRITORIAL JURISDICTION
The majority agrees “with appellant that it was appellee Port Arthur’s burden to *237show by competent evidence what was covered under their extraterritorial jurisdiction.” The majority further acknowledges that Port Arthur failed in being able to produce a metes and bounds description of their claimed ETJ, the claimed ETJ had never been identified or described by ordinance or resolution, no actual field work had been done to measure with exactness the claimed ETJ and the ground (marsh) had never been walked to determine exactly the claimed ETJ. It is true that the description of land in annexation ordinances is not required to meet the specificity required in a deed. See City of Wichita Falls v. Vogtsberger, 526 S.W.2d 618 (Tex.Civ.App.-Fort Worth 1975), rev’d on other grounds, 533 S.W.2d 927 (Tex.), cert. denied 429 U.S. 908, 50 L.Ed.2d 276, 97 S.Ct. 298 (1976); State v. City of Fort Worth, 339 S.W.2d 707 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n.r.e.); and City of West Orange v. State ex rel. City of Orange, 598 S.W.2d 387 (Tex.Civ.App.—Beaumont 1980) rev’d on other grounds, 613 S.W.2d 236 (Tex.1981). In each of these cases, however, there was some description in the annexation ordinance. In this case, there was only an arc on a map supposedly depicting the outward boundary of Port Arthur’s ETJ. While TEX.R.CIY. EVID. 802 states inadmissible hearsay evidence admitted without objection should not be denied probative value just because it is hearsay, it does not dictate that such evidence does indeed have probative value. Waldrop v. Manning, 507 S.W.2d 626 (Tex.Civ.App.-Texarkana 1973, writ ref’d n.r.e.) held that when maps are merely opinions and conclusions of their respective draftsmen, they have no probative force if they contain no factual information tying them to a survey. The depictions of the ETJ on the maps are not tied to any survey and are inconsistent among themselves as to the location of the claimed ETJ.
The majority mentions Oake v. Collin County, 692 S.W.2d 454 (Tex.1985) and briefly discusses the facts and holding. I believe the case is quite persuasive and controlling. While Oake involves the issue of taxation and who should bear the burden of proof that a particular county boundary exists and this case does not, there is a larger principle. That principle is that a governmental subdivision bears the burden of identifying its own boundary line. Through the extraterritorial jurisdiction scheme, the legislature has allowed municipalities to exercise certain controls over property. The public, both individuals and bodies politic, are entitled to know if a particular piece of property is claimed to be within a certain ETJ. If there becomes a dispute, as in Oake and here, then the governmental subdivision attempting to exercise jurisdiction, control or any type of dominion over the property should have the burden of identifying the boundary line.
PROPER QUO WARRANTO OFFICER
The question in the context before this court has never been written upon. I agree with the majority in concluding that State ex rel. Colleyville v. City of Hurst, 519 S.W.2d 698 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n.r.e.), is not particularly controlling in that it only restated, at 700, the general rule:
[A] quo warranto proceeding may be instituted by the attorney general, or by a district or county attorney of the proper district or county.... No other person may lawfully be authorized to bring such an action.
Likewise, none of the other cases cited by the majority speak to this particular issue; when an objection is lodged to the district or county attorney of the non-venue county bringing the Quo Warranto. The current statute, TEX.CIV.PRAC. & REM.CODE ANN. sec. 66.002 (Vernon 1986), states it in a slightly different way:
[T]he attorney general or the county or district attorney of the proper county may petition the district court of the proper county ... for leave to file an information in the nature of quo warran-to.
Therefore, to determine which district or county attorney may petition for leave to file, the proper county must be determined. Both quo warranto proceedings, Woodson Independent School Dist. v. State, 130 S.W.2d 1038 (Tex.Civ.App.-Eastland 1939, *238writ dism’d judgmt cor.); City of Wichita Falls v. State ex rel. Vogtsberger, 509 S.W.2d 661 (Tex.Civ.App.-Fort Worth 1974, no writ), and declaratory judgment suits, Citizens National Bank in Abilene v. Cattleman’s Production Credit Ass’n, 617 S.W.2d 731 (Tex.Civ.App-Waco 1981, no writ); Bracewell v. Fair, 638 S.W.2d 612 (Tex.App.-Houston [1st Dist.] 1982, no writ) are governed by the general venue rules. TEX.CIV.PRAC. & REM.CODE ANN. sec. 15.001 et seq. (Vernon 1986). Thus, Orange County was and is the proper county. Consequently, only the attorney general or the county attorney of Orange County may file the petition for leave to file the quo warranto. For the trial judge to allow any other person, including the criminal district attorney of Jefferson County to bring the quo warranto is in contravention of a mandatory statutory provision and any judgment rendered thereafter is void. See Downs v. City of Fort Worth, 692 S.W.2d 209, 212 (Tex.App.—Fort Worth 1985, writ ref'd n.r.e).
ATTORNEYS’ FEES
While the majority recognizes that attorneys’ fees are not recoverable in a quo warranto action, they let the attorneys’ fees stand because the “action in quo war-ranto and for declaratory judgment were so intertwined and interrelated as to defy segregation.” In the first place, once the quo warranto action was initiated, the declaratory judgment action was no longer appropriate. Ordinarily, quo warranto is the remedy to attack the validity of a city’s annexation ordinance. Hoffman v. Elliott, 476 S.W.2d 845, 846 (Tex.1972); State ex rel. Manchac v. City of Orange, 274 S.W.2d 886, 899 (Tex.Civ.App.—Beaumont 1955, no writ). Furthermore, a declaratory judgment action is improper and should not be entertained where there is another action, i.e. the quo warranto, pending between the same parties, Texas Liquor Control Board v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970), Johnson v. Hewitt, 539 S.W.2d 239, 240-1 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ) and should not be used solely to obtain attorneys’ fees, John Chezik Buick v. Friendly Chevrolet, 749 S.W.2d 591, 594-5 (Tex.App.-Dallas 1988, writ denied). This is simply not a suit in declaratory judgment. A declaratory judgment suit seeks to declare the rights and duties or the status of the parties. The main purpose of the declaratory judgment statute was to create a means to determine the rights of the parties before any wrong had actually been committed. City of Watauga v. Taylor, 752 S.W.2d 199, 205 (Tex.App.-Fort Worth 1988, no writ). At both the time Port Arthur filed its initial suit and the quo warranto, the relief sought was not to determine which city had jurisdiction over certain property, but to invalidate Bridge City’s annexation. See Barnett v. City of Colleyville, 737 S.W.2d 603, 606 (Tex.App.—Fort Worth 1987, writ denied). Therefore, I would hold no attorneys’ fees are recoverable.
Even if the declaratory judgment suit and the quo warranto could co-exist, the attorneys’ fees should be disallowed because they were not segregated. This very court in American Nat’l Bank v. First Wis. Mtg. Trust, 577 S.W.2d 312 (Tex.Civ.App.—Beaumont 1979, writ ref’d n.r.e.) citing International Security Life Ins. Co. v. Finck, 496 S.W.2d 544, 546-7 (Tex.1973) required a plaintiff to segregate the fees and expenses incident to a particular cause of action in which attorneys’ fees were recoverable. This was followed in Kosberg v. Brown, 601 S.W.2d 414, 418 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ).
The manner of the awarding of the appellate attorneys’ fees was also erroneous. Bridge City complains the award is unconditional and should be conditioned on a successful appeal by Port Arthur. The majority cites only one case, Reynolds v. McCullough, 739 S.W.2d 424 (Tex.App.—San Antonio 1987, writ denied) and quotes from the case: “This form of judgment has been approved in several cases before the courts of civil appeals.” There are several cases to the contrary. Siegler v. Williams, 658 S.W.2d 236 (Tex.App.—Houston [1st Dist.] 1983, no writ) stated at 241:
Further, a trial court may not penalize a party for taking a successful appeal by *239taxing him with attorney’s fees if he takes such action. Therefore, the trial court must condition the award of attorney’s fees to an appellee upon the appellant’s unsuccessful appeal. An unconditional award of appellate attorney’s fees is improper.
Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d 860 (Tex.Civ.App.—Corpus Christi 1980, no writ), King Optical v. Automatic Data Processing, 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.) and a recent case, Weaver v. King Ready Mix Concrete, Inc., 750 S.W.2d 913 (Tex.App.—Waco 1988, no writ) all follow the same rule.
THE SAYINGS CLAUSE OF THE ANNEXATIONS
The majority upholds the trial court’s declaration that the entire annexation is void despite the following savings clause:
If the taking of any territory annexed by this Ordinance is declared by a Court of competent jurisdiction to be invalid and/or illegal, it shall not affect the balance of the property annexed and attempted to be annexed and that property shall remain as part of THE CITY OF BRIDGE CITY, TEXAS.
The majority requires the savings clause to express an “intent to exclude from annexation territory over which it does not have jurisdiction.” The conditional language certainly implies such an intent. It should be a simple matter to just exclude that property within Port Arthur’s ETJ from the ordinance. However, under the state of the record, that was and still is impossible. It is impossible because Port Arthur provided neither a metes and bounds description of their extraterritorial jurisdiction nor a metes and bounds description of that portion of the annexed property they claimed was within their ETJ. Consequently, no one can, to this day, draft an annexation ordinance for Bridge City, in any area within the proximity of Port Arthur’s ETJ, that will not potentially invade Port Arthur’s ETJ. Thus, the trial court found itself and the majority find themselves on the horns of a dilemma. There was simply no alternative other than to declare the entire annexation ordinance void.
For the reasons expressed, I would reverse the trial court and render a take-nothing judgment against the City of Port Arthur. Since the majority does not, I respectfully dissent.