v.
VESTER T. HUGHES, AS SOLE INDEPENDENT EXECUTOR OF THE ESTATE OF W. W. CARUTH, DECEASED
IN THE SUPREME COURT OF
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No. 05-0126
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v.
Vester T. Hughes, as Sole Independent Executor of the Estate of W. W. Caruth, Deceased, Respondent
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On Petition for Review from the
Court of Appeals for the Fifth District of
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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
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]
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
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
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
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 context 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]
[3]
[4] Cities
of
[5] Deal
v.
[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 (
[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
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.
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.
[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.”
[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
[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
[16]
Lundy, 516
[17]
See
[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
[24] Proctor v.
Andrews, 972 S.W.2d 729, 733 (
[25] Hunter v. Fort
Worth Capital Corp., 620 S.W.2d 547, 551 (
[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.
[27] __ S.W.3d __.
[28] The City argues
that two other
[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 (
[33] In re Pirelli
Tire, L.L.C., __ S.W.3d __ (
[34] Again, “the
legislature is never presumed to do a useless act.” Hunter
v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (
[35] Alex Sheshunoff Mgmt. Servs., L.P. v.
Johnson, 209 S.W.3d 644, 651–-52 (
[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.).
