Karen Hall v. City of Bryan, Texas, 10-12-00248-CV (Tex. App. – Waco, July 24, 2014).
This is an annexation dispute and the third time Hall sued for disannexation. The 10th Court of Appeals affirmed in part and reversed in part the trial court’s grant of the City’s plea to the jurisdiction.
It is important to note up front this is not a challenge to the City’s ability to annexation (which is typical for annexation challenges) but a challenge for the lack of providing services under an annexation service plan, which is authorized by statute. In 1999 the City unilaterally annexed property owned by Hall as part of a larger annexation plan. Hall’s first suit challenged the City’s ability to annex the property but was dismissed upon the City’s summary judgment motion and affirmed by the 10th Court. Her second suit challenged the City’s ability to provide services under the plan and alleged a lack of services. The City filed a plea to the jurisdiction and summary judgment which were granted and affirmed. Hall’s third suit asserts the City failed to provide services “in good faith” consistent with the Local Government Code. The City filed a plea to the jurisdiction which was granted and Hall appealed.
Hall’s claims center around Tex. Loc. Gov’t Code Ann. §43.141(b) (West 2008), which states in part that a registered voter can bring suit for disannexation after several years if the “municipality failed to perform its obligations in accordance with the service plan or failed to perform in good faith.” The Waco Court of Appeals held that the City’s arguments of res judicata, collateral estoppel and statute of limitations cannot be raised in a plea to the jurisdiction as they are affirmative defenses. So all of the City’s arguments centered on those defenses are not considered in this appeal. The court next held that Hall’s complaints about the adequacy of the service plan and that the plan should have provided for additional services are not ones she has standing to pursue as those relate to the annexation process, which can only be challenge via a quo warranto suit by the state. The court explained that Hall’s arguments of failing to perform “in good faith” are not separate from providing services under the service plan and not an independent basis for challenge. The statute can only mean the failure to perform under the service plan in good faith, not other good faith challenges to other parts of the annexation statute. Further, since the service plan did not provide for water or sewer services paid for by the City, Hall cannot challenge the adequacy of providing a service not in the plan. However, the plan does specifically state the City would provide police protection with routine preventative patrols. Hall alleges the police presence in the area is far less than those in the rest of the City. And while this issue was addressed in her prior suits, a plea to the jurisdiction is not the proper place to raise prior rulings on the issue. Hall properly alleges a cause of action for failing to provide sufficient police protection and the City must go back to the trial court to establish whether that issue is barred by res judicata. As a result, the court affirmed in part and reversed in part the trial court’s judgment and remanded.
If you would like to read this opinion click here. Panel: Chief Justice Gray, Justice Davis, and Justice Scoggins. Memorandum opinion by Chief Justice Gray. Karen Hall was pro se. The attorneys listed for the City are Ryan Henry and Janis Hampton.