the City of Rockwall, Texas v. Vester T. Hughes, as Sole Independent of the Estate of W. W. Caruth

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

No. 05-0126

════════════

City of

Rockwall , Texas , Petitioner,

v.

Vester T. Hughes, as Sole

Independent Executor of the Estate of W. W. Caruth ,

Deceased, Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fifth District of

Texas

════════════════════════════════════════════════════

Argued January 25,

2006

Justice Willett , joined by Justice Hecht, Justice O’Neill , and

Justice Brister , dissenting.

The Court

espouses sound principles of statutory construction but unsoundly applies them.

Basically, it takes literalism too literally. Read naturally, section

43.052( i ) means this: landowners who request inclusion

of their land in a city’s annexation plan may arbitrate the city’s failure to

include it.

The City’s

position—arbitration is only available if the City ignores the petition,

not if it rejects it—makes little sense. Studied in context, the

arbitration-triggering phrase “fails to take action” in section 43.052( i ) has a more substantively coherent meaning than “fails to

take any action”; it necessarily means “fails to take favorable

action.” Landowners are seeking a specific outcome: inclusion in the city’s

annexation plan. The statute grants arbitration if the property remains

excluded, and exclusion persists just as surely through adverse action as

through inaction .

The meaning of “fails to take action” is best revealed by how this phrase

is used in another Chapter 43 arbitration provision. Applying today’s wooden

construction to that provision dictates an illogical result that lays bare the

Court’s misinterpretation. As discussed more fully below, the Court’s literalist

interpretation would deny residents of areas annexed by the City of Houston their statutory

right to arbitrate the City’s failure to provide municipal services to the

annexed area if the City rejects the residents’ petition to enforce the service

plan. As the Court reads “fails to take action,” Houstonians deprived of basic

city services will have no private remedy.

Read as a whole, the statutory scheme—in both section 43.052( i ) and in section 43.056( l )—is straightforward and

cannot bear the narrow meaning the Court ascribes to it. The Court’s unduly

restrictive reading is foreclosed by statutory context, and because context

matters, I respectfully dissent.

I. When Searching

for Statutory Meaning,

Words Matter–And

So Does Context

The Court aptly describes, then misapplies, the

pertinent ground rules for construing statutory language. Words and phrases must

be read “in context and construed according to the rules of grammar and common

usage.” [1] The import of language, plain or not,

must be drawn from the surrounding context, particularly when construing

everyday words and phrases that are inordinately context-sensitive. [2] Given the power of context to transform

the meaning of language, courts should resist rulings anchored in

hyper-technical readings of isolated words or phrases, [3] or forced readings that are exaggerated

or, at the other extreme, constrained. [4]

This “context matters” maxim—a cardinal rule not only of statutory

construction but “of language itself” [5] —is rooted in common sense, [6] Texas statutory law, [7] and caselaw

from both this Court [8] and the United States Supreme Court. [9]

Accordingly, when interpreting the (h )( 1)

exemption for quick annexation of rural land and the arbitration remedy in

subsection ( i ), we must consult the text and structure

of surrounding and related provisions. Doing so yields a clear and forthright

interpretation that confirms the statute’s natural meaning while giving effect

to every part of the statute.

Subsection ( i ) begins: “A municipality may not

circumvent the [three-year plan] requirement[ ] 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.” This proscriptive language sets the context; lawmakers

intended arbitration to curb the overzealous use of expedited, piecemeal

annexations under subsection (h )( 1) in order to evade

the three-year planning requirement.

Ignoring this context, the Court adopts the City’s view that “fails to

take action” means “fails to take any action,” in other words, when a

city succumbs to bureaucratic inertia and does nothing. But if a city rejects a

petition outright, the landowner has no further recourse. [10] This interpretation subverts the

Legislature’s effort to curb abusive annexation tactics.

The City complains that Hughes’s interpretation requires arbitration of

all requests, no matter how groundless, but the City’s rigid interpretation

enables it to deny all requests, no matter how meritorious. The Court’s holding

will effectively prescribe, not proscribe, the very circumvention that

subsection ( i ), by its terms, was intended to cure. [11]

In context, the phrase “fails to take action” captures not only a city’s

inaction but also a city’s overt denial of favorable action. The word

“favorable” is implicit, honors the phrase’s (and the overall statute’s)

common-sense meaning, and gives full effect to the statute’s objective: giving

landowners a specific and workable remedy against abuse of the (h )( 1) exemption. In my view, the language cannot fairly be

read any other way, and the Court’s reading almost certainly undermines the

Legislature’s intent.

II. The Court’s Strained Reading

Invites Absurd Results

The Court acknowledges that any interpretation, literal or not, that

produces absurd results should be discarded. [12] In my view, the Court’s interpretation

works multiple absurdities.

A. The Undeniable

Meaning of “Fails to Take Action” Elsewhere in Chapter 43

Undercuts the

Court’s Literalist Construction of Subsection ( i )

Most disconcerting is that the Court’s noncontextual analysis cannot be squared with other parts of

Chapter 43, principally section 43.056, which centers on the City of Houston’s

contractual duty to provide must-have services to areas slated for annexation

( e.g. , fire and police protection, EMS, road maintenance, solid waste

collection, water and wastewater facilities). [13] The Legislature in subsection ( l )

authorizes Houston residents and landowners to request

arbitration to force compliance with the City’s service plan, and, strikingly,

it uses the very same “fails to take action” phrase that appears in section

43.052( i ). Subsection ( l ) provides:

A person

residing or owning land in an annexed area . . . may enforce a service plan by

petitioning the municipality for a change in policy or procedures to ensure

compliance with the service plan. If the municipality fails to take action

with regard to the petition, the petitioner may request arbitration of the

dispute . . . . [14]

Under

long-settled authority, “fails to take action” must mean the same thing here as

it does in section 43.052( i ). [15] The multiple parallels at work here—the

same phrase enacted the same day in the same bill describing the same

proceeding—could not present a more “classic case for application of the normal

rule of statutory construction that identical words used in different parts of

the same act are intended to have the same meaning.” [16]

I venture this prediction: if today’s case centered not on subsection

( i ) but on subsection ( l ) and a Houston

resident’s request to arbitrate the City’s alleged breach of a service plan, the

Court would read “fails to take action” exactly as I read it in subsection

( i ). Studied consistently and contextually, the

meaning is self-evident: someone in an annexed area can request arbitration to

enforce the service plan if the city grants no relief on the petition.

Applying today’s construction of “fails to take action,” however, if the

City of Houston

denied a service-plan enforcement petition, arbitration would be unavailable.

This reading runs head-long into subsection ( l )’s two-step process for

enforcing City of Houston service plans: (1) a petition urging

the City to comply, then (2) arbitration if the petition produces no compliance.

The notion that arbitration is possible only if the City refuses to move a

bureaucratic muscle is conceptually untenable. The paramount goal of

service-plan enforcement is illusory if the City of Houston can foreclose a

service-plan challenge simply by rejecting the petition outright. Such a result

would render subsection ( l ) wholly impotent and allow the concerns that

prompted its enactment to thrive unchecked. [17] The landowner is seeking to compel

obedience to the service plan—a formal “contractual obligation” [18] —and vital city services will remain

unprovided whether the City rejects the petition or

ignores it; granting arbitration only if the City’s response is dilatory, but

not if it is direct, works an absurd result.

The very next sentence in subsection ( l ) removes any doubt that

the Legislature intended “fails to take action” to mean “fails to take favorable

action.” It authorizes persons living outside of Houston to apply for a writ of mandamus to prod

service-plan compliance from their respective cities. [19] It cannot possibly be the law that every

Texan outside the Houston city limits can freely and immediately

seek mandamus relief to enforce their cities’ service plans while Houstonians

deprived of basic services and whose enforcement petitions are rejected must

hope exclusively for a State-led quo warranto action.

Again, this result defeats the fundamental purpose (and contractual promise) of

the service-plan statute, but it is necessitated by the Court’s construction of

section 43.052( i ).

Chapter 43 is most coherent and consistent when “fails to take action”

means the same thing in both provisions. The Court, however, cites “context” to

reserve the right to interpret subsection ( l ) differently because

“sections 43.052( i ) and 43.056(l) not only differ in

the types of disputes they address, but also in how arbitrations of those

disputes are to be conducted.” [20] That is true, but also irrelevant; the

decisive “fails to take action” language is word-for-word identical and operates

the same way—the triggering phrases are grammatical and structural twins—and

there is no principled basis for distinguishing the indistinguishable. [21]

B. The City Says

Arbitration Is Possible “Only Under the Narrowest of Circumstances”–Namely, When

a City Volunteers

The City’s view, at its core, is that a landowner entitled to request

arbitration is never entitled to receive arbitration. Rather,

subsection ( i ) is “an essentially consensual remedy of

limited applicability,” something vested in the City’s absolute discretion. [22] I disagree that cities are only

subjected to arbitration if they choose to be. Section 43.052( i ), like the identically worded section 43.056( l ),

grants an actual remedy, not a “consensual” one and not merely a request for

one.

The Court’s “consensual remedy” holding endorses a path by which cities

may circumvent the legislatively preferred three-year plan: “Just Say No”— deny everything and arbitrate nothing. Under this view, if a

city (for reasons I cannot imagine) wanted to cede some of its planning

authority, it would ignore the petition. But if a city wanted to retain

unfettered control, it would deny the petition. Given how cities prize and

safeguard their municipal annexation authority, [23] no rational city would ever renounce

power by ignoring a petition when it could redouble power by denying it. If the

Legislature intended only to authorize cities to volunteer for arbitration, then

no statute was necessary as home-rule cities already possess “all the powers of

the state not inconsistent with the Constitution, the general laws, or the

city’s charter.” [24] A city that wants to arbitrate something

does not need a statute granting it permission. Because “the legislature is

never presumed to do a useless act,” [25] we must presume that it intended

something more than voluntary arbitration.

More revealing, though, is the City’s argument that all this sound and

fury about arbitration and inclusion in the city’s annexation plan signifies

nothing because the fast-track nature of (h )( 1)

annexations will quickly moot the entire dispute. As the City noted at oral

argument: “If the landowner asks to be included in a three-year plan, the city

sits on it, that remedy or rather any consideration of whether it should be in a

three-year plan is lost [once the area is annexed].”

The underlying facts illustrate the City’s position that all landowner

action under subsection ( i ) is ultimately futile:

$ the Estate proposed to the City a high-density housing plan

in the City’s extraterritorial jurisdiction (ETJ)

$

five days later the City directed its staff to

begin expeditious (h)(1) annexation (goal: to bring the property within the City

limits so it could impose low -density development restrictions)

$

the Estate then petitioned for inclusion in the City’s

three-year plan (goal: to delay the (h)(1) annexation so it could vest the

property’s high-density development plan)

Under the City’s position, heads the city wins and tails the landowner

loses. The calendar is inexorable. Arbitration is forever a mirage because even

if a landowner is theoretically entitled to arbitration, the City’s

annexation—the very annexation being challenged—zooms along the (h )( 1) fast track, thus short-circuiting the dispute.

C. The City’s “Pocket Veto” Analogy Is Facially off the Mark

The City says arbitration is possible in exactly one situation: “when a

city refuses to consider or evaluate the request—exercising the proverbial

‘pocket veto.’” The pocket-veto analogy is inapposite because a pocket veto,

classically understood, quickly yields a definitive outcome: rejection. [26]

Accepting arguendo the City’s pocket-veto

characterization, the Legislature, unlike the United States Constitution, has

failed to define the contours, and the Court avoids addressing these concerns, [27] most notably (1) how much time must

elapse before the landowner may request arbitration? and (2) what form of “action” suffices to derail

arbitration? [28]

Subsection ( i ) is open-ended and sets no

decision-making deadline by which a city must respond to a landowner’s petition.

If a city sits idle, a landowner has no way of knowing whether the city has

merely failed to open its mail or, alternatively, has in fact reviewed the

petition but quietly decided not to grant it. What length of city inaction is

sufficient before a landowner may seek arbitration? Meanwhile, as the landowner

awaits a formal response, the city continues speedily annexing the targeted

property under subsection (h )( 1).

Moreover, the Court, while purporting to construe “fails to take action”

literally, actually spurns its own literalist method. The Court says arbitration

is unavailable because the City’s categorical refusal amounts to “action.” The

word “action,” however, encompasses a wide range of activities: reviewing a

petition, conducting research, convening a hearing, deliberating, etc. [29] Why are these actions not “action”? The

Court implicitly limits the word “action” to mean dispositive action—when

a city formally denies a petition—but the Court cites nothing to explain why

nondispositive action fails to qualify.

By restricting “action” to a yes-or-no decision, [30] the Court has in fact abandoned

literalism by reading the statute to mean “fails to take final action,” a

locution that, notably, lawmakers have used elsewhere in the Local Government

Code regarding land use regulation, but not here. [31] The Court thus allows context to inform

the meaning of “action,” but it does so selectively, picking and choosing when

it will permit context to guide its statutory analysis.

III. The

Legislature Enacted a Specific Alternative to Quo Warranto

in Cases of Alleged Abuse of Subsection

(h)(1)

The Court says landowners are no worse off given the possibility of

State-initiated quo warranto intervention. The Court

reasons that annexation law is largely procedural and that our 1991 decision in

Alexander Oil Co. v. City of Sequin declared quo warranto the exclusive mechanism to challenge improperly

conducted annexations. [32] The Court’s analysis is

unconvincing.

The Legislature is presumed to understand extant law when it enacts

legislation, [33] and if it intended that quo warranto remain a landowner’s sole remedy against post-1999

annexation abuses, it would not have enacted a statute that explicitly grants a

private arbitration right. [34] This Court recently held that the

“truest manifestation” of what lawmakers intended is what lawmakers enacted—the

text they actually voted on—and the intent to supersede Alexander Oil is

found in a statute that does exactly that. [35]

We decided Alexander Oil in 1991 largely on the basis that the

Legislature had not yet given private individuals a way to challenge

annexations. Eight years later, the Legislature did so, granting landowners a

defined arbitration right. [36] The Legislature, we must presume,

understood the role of quo warranto in challenging

annexation proceedings when it provided for arbitration in subsection ( i ), but the Legislature’s comprehensive overhaul makes no

mention of quo warranto , much less retains the

exclusivity of such relief. The City insists the Legislature’s failure to

unequivocally declare that it was superseding Alexander Oil indicates it

never intended to do so. We have never required such declarations, and

Alexander Oil overtly disclaims the necessity for any such declaration:

quo warranto , we said in that case, is the way to

attack annexation irregularities unless the Legislature has “acted to

expressly provide a private action.” [37] The Legislature did precisely that

post- Alexander Oil . [38]

This 1999 legislative exception to the general quo warranto rule provides a simple yet substantive remedy that

is complete unto itself: the landowner petitions for inclusion in the three-year

plan, and if the land is not added, the landowner may seek arbitration.

Subsection ( i ) never states or suggests that quo warranto remains part of the legal landscape or that quo

warranto must precede arbitration as an intermediate

step.

Finally, the City’s reliance on three courts of appeals’ decisions

construing section 43.052 as strictly procedural, and thus subject only to quo

warranto challenge, is misplaced. [39] While those courts held that quo warranto is the sole means to attack a city’s alleged

violation of 43.052, none of those decisions considered the (h)(1) exemption or

interpreted subsection ( i ), focusing instead on other

portions of section 43.052.

The remedy for abuse of the sparsely-populated-area exemption is

arbitration, which subsection ( i ) clearly

authorizes.

IV. Conclusion

The statute in this case speaks for itself. The Court mutes the statute,

however, by fixating on four words divorced from the surrounding statutory

framework. I agree judges must adhere to the language that lawmakers voted on,

but statutes operate as a whole and must be read as a whole, not as a hodgepodge

of isolated fragments. The Court’s noncontextual

reading is incompatible with related provisions (including one identical

provision) in the same statute. Literalism can sometimes border on trivialism and should not be confused with textualism , which considers both statutory text and

statutory con text to ascribe meaning. Today’s decision is literalism gone

bad .

Hughes is statutorily entitled to arbitration, and because the Court

“fails to take action” to enforce that remedy, I respectfully dissent.

____________________________________

Don R. Willett

Justice

Opinion delivered: January 25,

2008

[1]

Tex. Gov’t Code § 311.011(a).

[2]

Id .

Some familiar words, depending on how they are used, convey polar opposite

meanings. For example, the word “sanction” may indicate approval (“I sanction

eating that bowl of ice cream.”) or disapproval (“My wife will sanction me for

eating that bowl of ice cream.”). See Webster’s New World Dictionary & Thesaurus

566 (Michael Agnes, ed., 2d ed. 2002). Its meaning—permission or

prohibition—turns entirely on context.

[3]

Tex. Dep’t of Transp. v. City of

Sunset Valley , 146 S.W.3d 637, 642

(Tex. 2004)

(“We must read the statute as a whole and not just isolated

portions.”).

[4]

Cities of Austin, Dallas, Ft.

Worth, & Hereford v. Sw. Bell Tel. Co. , 92 S.W.3d 434, 442

(Tex.

2002).

[5]

Deal v. United States ,

508 U.S. 129, 132 (1993).

[6]

As noted above, some words are auto-antonyms that can mean diametrically

opposite things depending on the context. The word “fast,” for example, can mean

“swift” or “firmly fastened.” See Webster’s , supra note 2, at 233.

The word “cleave” can mean “to adhere” or “to divide.” See id. at 112. In my view, the Court’s decision today “cleaves” to a

myopic approach that “cleaves” literal meaning from plain meaning.

[7]

See Tex. Gov’t

Code §

311.011(a).

[8]

For example, in Tooke v. City of Mexia , 197

S.W.3d 325 (Tex. 2006), our sole objective was to define

the meaning of “sue and be sued”-type language. Rather than concluding that

these simple and apparently unambiguous words have one, definitive meaning, we

recognized that “the import of these phrases cannot be ascertained apart from

the context in which they occur.” Id. at

329 ; see also, e.g. , City of Sunset Valley , 146 S.W.3d at 642 .

[9]

In Deal , the Court identified numerous possible meanings of “conviction”

in a bank robbery statute but reasoned that “of course susceptibility of all of

these meanings does not render the word ‘conviction,’ whenever it is used,

ambiguous; all but one of the meanings is ordinarily eliminated by context.”

508 U.S. at 131-32 .

The author of Deal , Justice Scalia, was

determined to drive home this point, as he wrote a dissent two weeks later in

Smith v. United States , 508 U.S. 223, 241-47 (1993), which centered on

the meaning of “using a firearm” and where Justice Scalia again stressed the

importance of giving words their fair meaning:

To use an instrumentality ordinarily means to use it for

its intended purpose. When someone asks, “Do you use a cane ?, ” he is not inquiring whether you have your grandfather's

silver-handled walking stick on display in the hall; he wants to know whether

you walk with a cane. Similarly, to speak of “using a firearm” is to

speak of using it for its distinctive purpose, i.e. , as a

weapon.

Id. at 242.

The Court is equally attuned to context in civil

cases. In Textron Lycoming Reciprocating Engine Division v. UAW of

America , 523 U.S. 653 (1998) (construing “suits for violation of

contracts”), the Union urged a narrow focus on the meaning of the preposition

“for,” but the Court refused to turn statutory interpretation into a brain

teaser and instead insisted on a natural reading that examined each word in

context, not under a microscope. Id. at 656-58 (“It is not the meaning

of the word ‘for’ we are seeking here, but the meaning of ‘[s] uits for violation of contracts.’” ( alteration in original)).

[10] While this opinion uses the term

“landowner” for simplicity, section 43.052( i ) makes

clear that a petitioner may be either “a person residing or owning land in the

area.” Id .

[11] The record suggests that few cities enact

three-year municipal annexation plans. In fact, amicus curiae The Texas

Municipal League (“TML”), an association of more than 1,070 incorporated cities

that advocates municipal interests, notes that many of its member “cities will

have a one page plan stating that they do not intend to annex any area for which

an annexation plan is required.” See Scott N. Houston, Tex. Mun. League ,

Municipal Annexation in Texas: “Is It Really That Complicated?”

13 (2003, updated Nov. 2004), available at

http://www.tml.org/legal_pdf/ANNEXATION111704.pdf. The City of Rockwall ’s

annexation “plan” is a near carbon copy: “[t]he City does not intend to annex

any territory that in order to be annexed, is required

to be in an annexation plan.” City of Rockwall , Tex. , Ordinance 99-49

(Dec. 20, 1999). Hughes argues that such “plans” clash with a key

objective underlying the Legislature’s 1999 rewrite, that annexation decisions

should be driven not by circumvention of the three-year planning process but by

order, thoughtfulness, and predictability. Judging by the myriad amicus briefs

filed by Texas

cities, expedited annexations under (h )( 1) are so

common that (h)(1) is actually the rule. TML’s brief

admits as much, saying the (h )( 1) exception “is

routinely used by most home rule cities. Only a handful of

cities annex under an annexation plan” at all.

[12] See __ S.W.3d. __.

[13] The statute defines the service plan as a

contract between the city and the annexed area. Tex. Loc. Gov’t Code § 43.056(k) (“On

approval by the governing body, the service plan is a contractual obligation . .

. .”). This contract establishes the method that the city will follow in

extending services to the newly annexed area. Tex. Loc. Gov’t Code § 43.056(b).

[14] Tex. Loc. Gov’t Code § 43.056( l )

(emphasis added). Compare this statute with section 43.052( i ): “If the municipality fails to take action on the

petition, the petitioner may request arbitration of the dispute.” It seems

beyond serious dispute that “fails to take action with regard to the

petition” in subsection ( l ) means exactly the same thing as “fails to

take action on the petition” in subsection ( i ).

[15] See Comm'r of

Internal Revenue v. Lundy , 516 U.S. 235, 249-50 (1996),

superseded by statute , Taxpayer Relief Act of 1997, Pub. L. No. 105-34,

sec. 1282 (a), 111 Stat. 1037 (codified as amended at 26 U.S.C. § 6512 ); see

also Dallas

County Cmty . Coll. Dist. v. Bolton , 185 S.W.3d 868, 873

(Tex. 2005) (“We must interpret a statute

according to its terms, giving meaning to the language consistent with other

provisions in the statute.”); Paddock v. Siemoneit , 218 S.W.2d 428, 435 (Tex. 1949) (observing

that the same words must be given the same meaning unless context dictates

otherwise).

[16] Lundy , 516 U.S. at 250 (internal quotation marks omitted)

(quoting Sullivan v. Stroop , 496

U.S. 478, 484 (1990)); see also

Paddock , 218 S.W.2d at 435 .

[17] See Houston , supra note 11, at 5-8 (describing the furor

surrounding the City of Houston’s annexation of

suburban Kingwood in 1996, a controversy that fueled the Legislature’s 1999

overhaul of Texas annexation law).

[18] See supra note 13.

[19] Tex. Loc. Gov’t Code § 43.056( l )

(“A person residing or owning land in an annexed area . . . may enforce a

service plan by applying for a writ of mandamus . . . .”).

[20] __ S.W.3d __.

[21] Besides eviscerating the arbitration

provision in section 43.056( l ) regarding service-plan enforcement, the

Court’s holding also nullifies parts of section 43.056( i ) above and beyond the arbitration provision itself. For

example, subsection ( i ) features a cost-shifting

penalty provision whereby arbitrators can sanction landowners if the petition

was “groundless or requested in bad faith or for the purposes of harassment.” It

is inconceivable, however, that any right-minded city

would ever submit to city-funded arbitration of any petition, much less a

baseless one, if it knew that it could dodge arbitration just by denying the

petition outright.

[22] At oral argument, the City insisted that a

valid arbitration request alone cannot trigger arbitration or justify a court

order compelling arbitration:

COURT: So does 43.052 give a private landowner any

right at any time under any circumstances to sue for an order compelling

arbitration?

RESPONSE: No, it

doesn’t. . . .

COURT: So even when the city fails to act one way or

the other, they sit on it for whatever reason, there is still no private right

of action to compel arbitration?

RESPONSE: Well,

that’s correct. We take that position. . . .

[23] Cities regard the broad, unilateral power

to annex as a matter of municipal life and death: “According to many national

authorities, this annexation power is the primary difference between the

flourishing cities of Texas and the declining urban areas in other

parts of the nation.” See Houston , supra note 11, at 10.

[24] Proctor v. Andrews , 972 S.W.2d 729,

733 (Tex.

1998) (observing that the Legislature may restrict the power of home-rule cities

that derive their plenary power directly from the

Constitution); see also Tex. Const. Art. XI,

§ 5.

[25] Hunter v. Fort Worth Capital Corp. ,

620 S.W.2d 547, 551 (Tex. 1981); see also

Travis County v. Pelzel & Assocs., Inc. , 77

S.W.3d 246, 249-50 (Tex. 2002), superseded by statute ,

Tex. Loc. Gov’t

Code § 262.007; Liberty Mut . Ins. Co.

v. Garrison Contractors, Inc. , 966 S.W.2d 482,

485 (Tex.

1998).

[26] A true pocket veto occurs when the

President fails to sign a bill passed by Congress within ten days, if Congress

is not in session at the end of those ten days. U.S. Const . art.

I, § 7, cl. 2; see also The Pocket Veto Case , 279 U.S. 655 (1929). Timing

is the critical element. The President can only kill legislation with a pocket

veto if Congress adjourns before the ten days expire; if Congress remains in

session, and ten days elapse, then the bill automatically becomes law without

the President’s signature. U.S. Const . art.

I, § 7, cl. 2.

[27] __ S.W.3d __.

[28] The City argues that two other Texas statutes use the

phrase “fails to take action” to mean “fails to take any action” and not

overt rejection. See Tex. Loc.

Gov’t Code § 232.096 (authorizing commissioner’s courts to approve or

disapprove plat decisions of a land planning commission and providing that if

the court “fails to take action” within thirty days, the commission’s decision

becomes final); Tex. Occ. Code §

262.1025 (authorizing the State Board of Dental Examiners to review rules

proposed by an advisory committee and providing that if the board fails to take

action on the recommendation within ninety days, it must adopt the

recommendation). These two statutes are facially different. In both, one

governmental body is reviewing the prior decision or proposal of another

governmental body; if the reviewing body “fails to take action” for a specified

number of days, the prior decision is ratified by operation of law. The

annexation statute, by contrast, lacks this critical “deeming” feature. The

City’s theory leaves the landowner in perpetual limbo since inaction is never

treated as either approval or rejection of the landowner’s petition, no matter

how much time elapses. Meanwhile, the challenged annexation proceeds unabated.

The reason the identical phrase “fails to take action” is interpreted

differently in these other statutes is because the surrounding language is

different in these other statutes. Again, context controls.

[29] According to Black's Law Dictionary , "action" means

"[t]he process of doing something; conduct or behavior." Black's Law Dictionary 31 (8th ed.

2004).

[30] See, e.g. , __ S.W.3d __ (“[T] he city failed to take action on it one way or the other . .

. .”).

[31] The Legislature, for example, says if a

county planning commission “fails to take final action” on a completed

plat application within sixty days, the applicant may seek mandamus relief “to

compel the planning commission to approve or disapprove the plat.” Tex. Loc. Gov’t Code § 232.096(g)

(emphasis added).

[32] 825 S.W.2d 434, 436-37 (Tex. 1991).

[33] In re Pirelli Tire, L.L.C. , __

S.W.3d __ (Tex. 2007).

[34] Again, “the legislature is never presumed

to do a useless act.” Hunter v. Fort Worth Capital

Corp. , 620 S.W.2d 547, 551 (Tex. 1981).

[35] Alex Sheshunoff Mgmt. Servs ., L.P. v.

Johnson , 209 S.W.3d 644 , 651–-52 (Tex. 2006).

[36] Act of May 31, 1999, 76th Leg., R.S., ch . 1167, § 4, sec. 43.052( i ),

1999 Tex. Gen. Laws 4074 , 4076-77.

[37] Alexander Oil , 825

S.W.2d at 437 .

[38] The Court posits the specter of multiple

“individual arbitration proceedings” as another basis for its pro-quo- warranto holding. __ S.W.3d. __. To

be sure, the City and various amici predict calamitous

and “drastic implications” if we interpret the statute to provide a private

arbitration right. I concede that landowner-invoked arbitration may well saddle

cities with real and nonincidental costs. I also

understand the City’s fear that developers will (1) target areas within the ETJ

for dense, out-of-character projects that clash with the city’s overall vision

for the area and (2) use arbitration under subsection ( i ) as a delaying tactic or as negotiating leverage. These

arguments, however, are rooted in policy and prudential concerns, which are

quintessential legislative judgments, not judicial ones. Burdensome or not, the

costs and hassles attending arbitration were, I would conclude, presumed

acceptable by the Legislature, and in any event, avoidable if cities

scrupulously complied with the statute’s three-year annexation plan requirement

in lieu of successive fast-track annexations under (h)(1).

[39] The City cites Werthmann v. City of Fort Worth , 121 S.W.3d

803, 807 (Tex. App.—Fort Worth 2003, no pet.); City of Balch Springs v.

Lucas , 101 S.W.3d 116, 122 (Tex. App.—Dallas 2002, no pet.); City of San

Antonio v. Hardee , 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no

pet.).