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

> Texas Supreme Court · January 25, 2008

URL: https://www.frixlaw.com/law-library/cases/2834394

## Case

- **Court:** Texas Supreme Court
- **Decided:** January 25, 2008
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2834394

## How later opinions describe it (automated extraction)

- observing that the same words must be given the same meaning unless context dictates otherwise
- observing that the Legislature may restrict the power of home-rule cities that derive their plenary power directly from the Constitution

## Opinion text

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.).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2834394. Public record. Not legal advice.