IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 05-0126

════════λ= 2;═══

City of=20 Rockwall, Texas, = Petitioner,

Vester T. Hughes, as = Sole=20 Independent Executor of the Estate of W. W. Caruth,=20 Deceased, Respondent

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Fifth = District of=20 Texas

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued January 25,=20 2006

Justice Willett, joined by = Justice Hecht, Justice = O=92Neill, and=20 Justice Brister, = dissenting.

&nbs= p; = ; = &= nbsp; &n= bsp; =20

The = Court=20 espouses sound principles of statutory construction but unsoundly = applies them.=20 Basically, it takes literalism too literally. Read naturally, section=20 43.052(i) means this: landowners who request = inclusion=20 of their land in a city=92s annexation plan may arbitrate the city=92s = failure to=20 include it.

The = City=92s=20 position=97arbitration is only available if the City ignores the = petition,=20 not if it rejects it=97makes little sense. Studied in context, = the=20 arbitration-triggering phrase =93fails to take action=94 in section = 43.052(i) has a more substantively coherent meaning than = =93fails to=20 take any action=94; it necessarily means =93fails to take = favorable=20 action.=94 Landowners are seeking a specific outcome: inclusion in the = city=92s=20 annexation plan. The statute grants arbitration if the property remains=20 excluded, and exclusion persists just as surely through adverse = action as=20 through inaction.

=20 The meaning of =93fails to take action=94 is best revealed by how = this phrase=20 is used in another Chapter 43 arbitration provision. Applying today=92s = wooden=20 construction to that provision dictates an illogical result that lays = bare the=20 Court=92s misinterpretation. As discussed more fully below, the = Court=92s literalist=20 interpretation would deny residents of areas annexed by the City of = Houston their = statutory=20 right to arbitrate the City=92s failure to provide municipal services to = the=20 annexed area if the City rejects the residents=92 petition to enforce = the service=20 plan. As the Court reads =93fails to take action,=94 Houstonians = deprived of basic=20 city services will have no private remedy.

=20 Read as a whole, the statutory scheme=97in both section = 43.052(i) and in section 43.056(l)=97is = straightforward and=20 cannot bear the narrow meaning the Court ascribes to it. The Court=92s = unduly=20 restrictive reading is foreclosed by statutory context, and because = context=20 matters, I respectfully dissent.

I. = When Searching=20 for Statutory Meaning,

Words Matter=96And=20 So Does Context

=20 The Court aptly describes, then = misapplies, the=20 pertinent ground rules for construing statutory language. Words and = phrases must=20 be read =93in context and construed according to the rules of grammar = and common=20 usage.=94 [1] The import of language, plain = or not,=20 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=20 the meaning of language, courts should resist rulings anchored in=20 hyper-technical readings of isolated words or phrases,[3] or forced readings that are = exaggerated=20 or, at the other extreme, constrained.[4]

=20 This =93context matters=94 maxim=97a cardinal rule not only of = statutory=20 construction but =93of language itself=94 [5]=97is rooted in common sense,[6] Texas statutory law,[7] and caselaw=20 from both this Court [8] and the United States Supreme = Court.[9]

=20 Accordingly, when interpreting the (h)(1)=20 exemption for quick annexation of rural land and the arbitration remedy = in=20 subsection (i), we must consult the text and = structure=20 of surrounding and related provisions. Doing so yields a clear and = forthright=20 interpretation that confirms the statute=92s natural meaning while = giving effect=20 to every part of the statute.

=20 Subsection (i) begins: =93A = municipality may not=20 circumvent the [three-year plan] requirement[ ] by proposing to = separately annex=20 two or more areas described by Subsection (h)(1) if no reason exists = under=20 generally accepted municipal planning principles and practices for = separately=20 annexing the areas.=94 This proscriptive language sets the context; = lawmakers=20 intended arbitration to curb the overzealous use of expedited, piecemeal = annexations under subsection (h)(1) in order = to evade=20 the three-year planning requirement.

=20 Ignoring this context, the Court adopts the City=92s view that = =93fails to=20 take action=94 means =93fails to take any action,=94 in other = words, when a=20 city succumbs to bureaucratic inertia and does nothing. But if a city = rejects a=20 petition outright, the landowner has no further recourse.[10] This interpretation subverts = the=20 Legislature=92s effort to curb abusive annexation tactics.

=20 The City complains that Hughes=92s interpretation requires = arbitration of=20 all requests, no matter how groundless, but the City=92s rigid = interpretation=20 enables it to deny all requests, no matter how meritorious. The = Court=92s holding=20 will effectively prescribe, not proscribe, the very circumvention that=20 subsection (i), by its terms, was intended = to cure.[11]

=20 In context, the phrase =93fails to take action=94 captures not = only a city=92s=20 inaction but also a city=92s overt denial of favorable action. The word=20 =93favorable=94 is implicit, honors the phrase=92s (and the overall = statute=92s)=20 common-sense meaning, and gives full effect to the statute=92s = objective: giving=20 landowners a specific and workable remedy against abuse of the (h)(1) exemption. In my view, the language cannot = fairly be=20 read any other way, and the Court=92s reading almost certainly = undermines the=20 Legislature=92s intent.

II. The Court=92s Strained = Reading=20 Invites Absurd Results

=20 The Court acknowledges that any interpretation, literal or not, = that=20 produces absurd results should be discarded.[12] In my view, the Court=92s = interpretation=20 works multiple absurdities.

A. = The Undeniable=20 Meaning of =93Fails to Take Action=94 Elsewhere in Chapter 43

Undercuts the=20 Court=92s Literalist Construction of Subsection (i)

=20 Most disconcerting is that the Court=92s noncontextual analysis cannot be squared with = other parts of=20 Chapter 43, principally section 43.056, which centers on the City of = Houston=92s=20 contractual duty to provide must-have services to areas slated for = annexation=20 (e.g., fire and police protection, EMS, road maintenance, solid = waste=20 collection, water and wastewater facilities).[13] The Legislature in subsection = (l)=20 authorizes Houston residents and landowners to = request=20 arbitration to force compliance with the City=92s service plan, and, = strikingly,=20 it uses the very same =93fails to take action=94 phrase that appears in = section=20 43.052(i). Subsection (l) = provides:

A person=20 residing or owning land in an annexed area . . . may enforce a service = plan by=20 petitioning the municipality for a change in policy or procedures to = ensure=20 compliance with the service plan. If the municipality fails to take = action=20 with regard to the petition, the petitioner may request arbitration = of the=20 dispute . . . .[14]

Under=20 long-settled authority, =93fails to take action=94 must mean the same = thing here as=20 it does in section 43.052(i).[15] The multiple parallels at work = here=97the=20 same phrase enacted the same day in the same bill describing the same=20 proceeding=97could not present a more =93classic case for application of = the normal=20 rule of statutory construction that identical words used in different = parts of=20 the same act are intended to have the same meaning.=94[16]

=20 I venture this prediction: if today=92s case centered not on = subsection=20 (i) but on subsection (l) and a = Houston=20 resident=92s request to arbitrate the City=92s alleged breach of a = service plan, the=20 Court would read =93fails to take action=94 exactly as I read it in = subsection=20 (i). Studied consistently and contextually, = the=20 meaning is self-evident: someone in an annexed area can request = arbitration to=20 enforce the service plan if the city grants no relief on the = petition.

=20 Applying today=92s construction of =93fails to take action,=94 = however, if the=20 City of Houston=20 denied a service-plan enforcement petition, arbitration would be = unavailable.=20 This reading runs head-long into subsection (l)=92s two-step = process for=20 enforcing City of Houston service plans: (1) a petition = urging=20 the City to comply, then (2) arbitration if the petition produces no = compliance.=20 The notion that arbitration is possible only if the City refuses to move = a=20 bureaucratic muscle is conceptually untenable. The paramount goal of=20 service-plan enforcement is illusory if the City of Houston can = foreclose a=20 service-plan challenge simply by rejecting the petition outright. Such a = result=20 would render subsection (l) wholly impotent and allow the = concerns that=20 prompted its enactment to thrive unchecked.[17] The landowner is seeking to = compel=20 obedience to the service plan=97a formal =93contractual obligation=94[18]=97and vital city services will = remain=20 unprovided whether the City rejects the = petition or=20 ignores it; granting arbitration only if the City=92s response is = dilatory, but=20 not if it is direct, works an absurd result.

=20 The very next sentence in subsection (l) removes any doubt = that=20 the Legislature intended =93fails to take action=94 to mean =93fails to = take favorable=20 action.=94 It authorizes persons living outside of Houston to apply for a writ of = mandamus to prod=20 service-plan compliance from their respective cities.[19] It cannot possibly be the law = that every=20 Texan outside the Houston city limits can freely and = immediately=20 seek mandamus relief to enforce their cities=92 service plans while = Houstonians=20 deprived of basic services and whose enforcement petitions are rejected = must=20 hope exclusively for a State-led quo warranto action.=20 Again, this result defeats the fundamental purpose (and contractual = promise) of=20 the service-plan statute, but it is necessitated by the Court=92s = construction of=20 section 43.052(i).

=20 Chapter 43 is most coherent and consistent when =93fails to take = action=94=20 means the same thing in both provisions. The Court, however, cites = =93context=94 to=20 reserve the right to interpret subsection (l) differently because = =93sections 43.052(i) and 43.056(l) not only = differ in=20 the types of disputes they address, but also in how arbitrations of = those=20 disputes are to be conducted.=94 [20] That is true, but also = irrelevant; the=20 decisive =93fails to take action=94 language is word-for-word identical = and operates=20 the same way=97the triggering phrases are grammatical and structural = twins=97and=20 there is no principled basis for distinguishing the indistinguishable.[21]

B. = The City Says=20 Arbitration Is Possible =93Only Under the Narrowest of = Circumstances=94=96Namely, When=20 a City Volunteers

&nbs= p; = ; =20

=20 The City=92s view, at its core, is that a landowner entitled to = request=20 arbitration is never entitled to receive arbitration. Rather, = subsection (i) is =93an essentially = consensual remedy of=20 limited applicability,=94 something vested in the City=92s absolute = discretion.[22] I disagree that cities are = only=20 subjected to arbitration if they choose to be. Section 43.052(i), like the identically worded section = 43.056(l),=20 grants an actual remedy, not a =93consensual=94 one and not merely a = request for=20 one.

=20 The Court=92s =93consensual remedy=94 holding endorses a path by = which cities=20 may circumvent the legislatively preferred three-year plan: =93Just Say = No=94=97deny everything and arbitrate nothing. Under this = view, if a=20 city (for reasons I cannot imagine) wanted to cede some of its planning=20 authority, it would ignore the petition. But if a city wanted to retain=20 unfettered control, it would deny the petition. Given how cities prize = and=20 safeguard their municipal annexation authority,[23] no rational city would ever = renounce=20 power by ignoring a petition when it could redouble power by denying it. = If the=20 Legislature intended only to authorize cities to volunteer for = arbitration, then=20 no statute was necessary as home-rule cities already possess =93all the = powers of=20 the state not inconsistent with the Constitution, the general laws, or = the=20 city=92s charter.=94 [24] A city that wants to arbitrate = something=20 does not need a statute granting it permission. Because =93the = legislature is=20 never presumed to do a useless act,=94 [25] we must presume that it = intended=20 something more than voluntary arbitration.

=20 More revealing, though, is the City=92s argument that all this = sound and=20 fury about arbitration and inclusion in the city=92s annexation plan = signifies=20 nothing because the fast-track nature of (h)(1)=20 annexations will quickly moot the entire dispute. As the City noted at = oral=20 argument: =93If the landowner asks to be included in a three-year plan, = the city=20 sits on it, that remedy or rather any consideration of whether it should = be in a=20 three-year plan is lost [once the area is annexed].=94

=20 The underlying facts illustrate the City=92s position that all = landowner=20 action under subsection (i) is ultimately = futile:

$ the Estate proposed to the City a high-density = housing plan=20 in the City=92s extraterritorial jurisdiction (ETJ)

$ =20 five days later the City directed its = staff to=20 begin expeditious (h)(1) annexation (goal: to bring the property within = the City=20 limits so it could impose low-density development = restrictions)

$ &n= bsp;=20 the Estate then petitioned for inclusion in = the City=92s=20 three-year plan (goal: to delay the (h)(1) annexation so it could vest = the=20 property=92s high-density development plan)

=20 Under the City=92s position, heads the city wins and tails the = landowner=20 loses. The calendar is inexorable. Arbitration is forever a mirage = because even=20 if a landowner is theoretically entitled to arbitration, the City=92s=20 annexation=97the very annexation being challenged=97zooms along the = (h)(1) fast track, thus short-circuiting the = dispute.

C. The City=92s =93Pocket Veto=94 Analogy Is Facially off the Mark

=20 The City says arbitration is possible in exactly one situation: = =93when a=20 city refuses to consider or evaluate the request=97exercising the = proverbial=20 =91pocket veto.=92=94 The pocket-veto analogy is inapposite because a = pocket veto,=20 classically understood, quickly yields a definitive outcome: = rejection.[26]

=20 Accepting arguendo the City=92s = pocket-veto=20 characterization, the Legislature, unlike the United States = Constitution, has=20 failed to define the contours, and the Court avoids addressing these = concerns,[27] most notably (1) how much time = must=20 elapse before the landowner may request arbitration? and (2) what form of =93action=94 suffices to = derail=20 arbitration?[28]

=20 Subsection (i) is open-ended and sets = no=20 decision-making deadline by which a city must respond to a landowner=92s = petition.=20 If a city sits idle, a landowner has no way of knowing whether the city = has=20 merely failed to open its mail or, alternatively, has in fact reviewed = the=20 petition but quietly decided not to grant it. What length of city = inaction is=20 sufficient before a landowner may seek arbitration? Meanwhile, as the = landowner=20 awaits a formal response, the city continues speedily annexing the = targeted=20 property under subsection (h)(1).

=20 Moreover, the Court, while purporting to construe =93fails to = take action=94=20 literally, actually spurns its own literalist method. The Court says = arbitration=20 is unavailable because the City=92s categorical refusal amounts to = =93action.=94 The=20 word =93action,=94 however, encompasses a wide range of activities: = reviewing a=20 petition, conducting research, convening a hearing, deliberating, etc.[29] Why are these actions not = =93action=94? The=20 Court implicitly limits the word =93action=94 to mean dispositive = action=97when=20 a city formally denies a petition=97but the Court cites nothing to = explain why=20 nondispositive action fails to = qualify.=20 By restricting =93action=94 to a yes-or-no decision,[30] the Court has in fact = abandoned=20 literalism by reading the statute to mean =93fails to take final = action,=94 a=20 locution that, notably, lawmakers have used elsewhere in the Local = Government=20 Code regarding land use regulation, but not here.[31] The Court thus allows context = to inform=20 the meaning of =93action,=94 but it does so selectively, picking and = choosing when=20 it will permit context to guide its statutory analysis.

III. = The=20 Legislature Enacted a Specific Alternative to Quo Warranto

in Cases of Alleged Abuse of Subsection=20 (h)(1)

=20 The Court says landowners are no worse off given the possibility = of=20 State-initiated quo warranto intervention. = The Court=20 reasons that annexation law is largely procedural and that our 1991 = decision in=20 Alexander Oil Co. v. City of Sequin declared quo warranto the exclusive mechanism to challenge = improperly=20 conducted annexations.[32] The Court=92s analysis is=20 unconvincing.

=20 The Legislature is presumed to understand extant law when it = enacts=20 legislation,[33] and if it intended that quo = warranto remain a landowner=92s sole remedy = against post-1999=20 annexation abuses, it would not have enacted a statute that explicitly = grants a=20 private arbitration right.[34] This Court recently held that = the=20 =93truest manifestation=94 of what lawmakers intended is what lawmakers = enacted=97the=20 text they actually voted on=97and the intent to supersede Alexander = Oil is=20 found in a statute that does exactly that.[35]

=20 We decided Alexander Oil in 1991 largely on the basis that = the=20 Legislature had not yet given private individuals a way to challenge=20 annexations. Eight years later, the Legislature did so, granting = landowners a=20 defined arbitration right.[36] The Legislature, we must = presume,=20 understood the role of quo warranto in = challenging=20 annexation proceedings when it provided for arbitration in subsection = (i), but the Legislature=92s comprehensive overhaul = makes no=20 mention of quo warranto, much less retains = the=20 exclusivity of such relief. The City insists the Legislature=92s failure = to=20 unequivocally declare that it was superseding Alexander Oil = indicates it=20 never intended to do so. We have never required such declarations, and=20 Alexander Oil overtly disclaims the necessity for any such = declaration:=20 quo warranto, we said in that case, is the = way to=20 attack annexation irregularities unless the Legislature has = =93acted to=20 expressly provide a private action.=94 [37] The Legislature did precisely = that=20 post-Alexander Oil.[38]

=20 This 1999 legislative exception to the general quo warranto rule provides a simple yet substantive = remedy that=20 is complete unto itself: the landowner petitions for inclusion in the = three-year=20 plan, and if the land is not added, the landowner may seek arbitration.=20 Subsection (i) never states or suggests that = quo warranto remains part of the legal landscape or = that quo=20 warranto must precede arbitration as an = intermediate=20 step.

=20 Finally, the City=92s reliance on three courts of appeals=92 = decisions=20 construing section 43.052 as strictly procedural, and thus subject only = to quo=20 warranto challenge, is misplaced.[39] While those courts held that = quo warranto is the sole means to attack a city=92s = alleged=20 violation of 43.052, none of those decisions considered the (h)(1) = exemption or=20 interpreted subsection (i), focusing instead = on other=20 portions of section 43.052.

=20 The remedy for abuse of the sparsely-populated-area exemption is=20 arbitration, which subsection (i) clearly=20 authorizes.

IV. Conclusion

=20 The statute in this case speaks for itself. The Court mutes the = statute,=20 however, by fixating on four words divorced from the surrounding = statutory=20 framework. I agree judges must adhere to the language that lawmakers = voted on,=20 but statutes operate as a whole and must be read as a whole, not as a = hodgepodge=20 of isolated fragments. The Court=92s noncontextual=20 reading is incompatible with related provisions (including one = identical=20 provision) in the same statute. Literalism can sometimes border on = trivialism and should not be confused with textualism, which considers both statutory text = and=20 statutory context to ascribe meaning. Today=92s decision is = literalism gone=20 bad.

=20 Hughes is statutorily entitled to arbitration, and because the = Court=20 =93fails to take action=94 to enforce that remedy, I respectfully = dissent.

&nbs= p; = ; = &= nbsp; &n= bsp; =20

=20 ____________________________________

=20 Don R. Willett

=20 Justice

Opinion delivered: = January 25,=20 2008

^[1]=20 Tex. Gov=92t Code =A7 = 311.011(a).

^[2]=20 Id.=20 Some familiar words, depending on how they are used, convey polar = opposite=20 meanings. For example, the word =93sanction=94 may indicate approval = (=93I sanction=20 eating that bowl of ice cream.=94) or disapproval (=93My wife will = sanction me for=20 eating that bowl of ice cream.=94). See Webster=92s New World Dictionary = & Thesaurus=20 566 (Michael Agnes, ed., 2d ed. 2002). Its meaning=97permission = or=20 prohibition=97turns entirely on context.

^[3]=20 Tex. Dep=92t of Transp. v. = City of=20 Sunset Valley, 146 S.W.3d 637, 642=20 (Tex. 2004)=20 (=93We must read the statute as a whole and not just isolated=20 portions.=94).

^[4]=20 Cities of Austin, Dallas, Ft.=20 Worth, & Hereford v. Sw. Bell Tel. Co., 92 S.W.3d 434, = 442=20 (Tex.=20 2002).

^[5]=20 Deal v. United = States,=20 508 U.S. 129, 132 = (1993).

^[6]=20 As noted above, some words are auto-antonyms that can mean diametrically = opposite things depending on the context. The word =93fast,=94 for = example, can mean=20 =93swift=94 or =93firmly fastened.=94 See Webster=92s, supra = note 2, at 233.=20 The word =93cleave=94 can mean =93to adhere=94 or =93to divide.=94 = See id. at 112. In my view, the Court=92s decision today = =93cleaves=94 to a=20 myopic approach that =93cleaves=94 literal meaning from plain = meaning.

^[7]=20 See Tex. Gov=92t=20 Code =A7=20 311.011(a).

^[8]=20 For example, in Tooke v. City of Mexia, 197=20 S.W.3d 325 (Tex. 2006), our sole objective was = to define=20 the meaning of =93sue and be sued=94-type language. Rather than = concluding that=20 these simple and apparently unambiguous words have one, definitive = meaning, we=20 recognized that =93the import of these phrases cannot be ascertained = apart from=20 the context in which they occur.=94 Id. at=20 329; see also, e.g., City of Sunset Valley, 146 S.W.3d at = 642.

^[9]=20 In Deal, the Court identified numerous possible meanings of = =93conviction=94=20 in a bank robbery statute but reasoned that =93of course susceptibility = of all of=20 these meanings does not render the word =91conviction,=92 whenever it is = used,=20 ambiguous; all but one of the meanings is ordinarily eliminated by = context.=94=20 508 U.S. at 131-32.

&nbs= p; =20 The author of Deal, Justice Scalia, was = determined to drive home this point, as he wrote a dissent two weeks = later in=20 Smith v. United States, 508 U.S. 223, 241-47 (1993), which = centered on=20 the meaning of =93using a firearm=94 and where Justice Scalia again = stressed the=20 importance of giving words their fair meaning:

To use an instrumentality ordinarily means to = use it for=20 its intended purpose. When someone asks, =93Do you use a cane?,=94 he is not inquiring whether you have your = grandfather's=20 silver-handled walking stick on display in the hall; he wants to know = whether=20 you walk with a cane. Similarly, to speak of =93using a = firearm=94 is to=20 speak of using it for its distinctive purpose, i.e., as a=20 weapon.

Id. at 242.

&nbs= p; =20 The Court is equally attuned to context in = civil=20 cases. In Textron Lycoming Reciprocating Engine Division v. UAW of=20 America, 523 U.S. 653 (1998) (construing =93suits for = violation of=20 contracts=94), the Union urged a narrow focus on the meaning of the = preposition=20 =93for,=94 but the Court refused to turn statutory interpretation into a = brain=20 teaser and instead insisted on a natural reading that examined each word = in=20 context, not under a microscope. Id. at 656-58 (=93It is not = the meaning=20 of the word =91for=92 we are seeking here, but the meaning of = =91[s]uits for violation of contracts.=92=94 (alteration in original)).

^[10] While this opinion uses the term=20 =93landowner=94 for simplicity, section 43.052(i) makes=20 clear that a petitioner may be either =93a person residing or owning = land in the=20 area.=94 Id.

^[11] The record suggests that few = cities enact=20 three-year municipal annexation plans. In fact, amicus curiae The Texas=20 Municipal League (=93TML=94), an association of more than 1,070 = incorporated cities=20 that advocates municipal interests, notes that many of its member = =93cities will=20 have a one page plan stating that they do not intend to annex any area = for which=20 an annexation plan is required.=94 See Scott N. Houston, Tex. Mun. League,=20 Municipal Annexation in Texas: =93Is It Really That = Complicated?=94=20 13 (2003, updated Nov. 2004), available at=20 http://www.tml.org/legal_pdf/ANNEXATION111704.pdf. The City of = Rockwall=92s=20 annexation =93plan=94 is a near carbon copy: =93[t]he City does not = intend to annex=20 any territory that in order to be annexed, is = required=20 to be in an annexation plan.=94 City of Rockwall, = Tex., = Ordinance 99-49=20 (Dec. 20, 1999). Hughes argues that such =93plans=94 clash with a = key=20 objective underlying the Legislature=92s 1999 rewrite, that annexation = decisions=20 should be driven not by circumvention of the three-year planning process = but by=20 order, thoughtfulness, and predictability. Judging by the myriad amicus = briefs=20 filed by Texas=20 cities, expedited annexations under (h)(1) = are so=20 common that (h)(1) is actually the rule. TML=92s brief=20 admits as much, saying the (h)(1) exception = =93is=20 routinely used by most home rule cities. Only a = handful of=20 cities annex under an annexation plan=94 at all.

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

^[13] The statute defines the service = plan as a=20 contract between the city and the annexed area. Tex. Loc. Gov=92t Code =A7 = 43.056(k) (=93On=20 approval by the governing body, the service plan is a contractual = obligation . .=20 . .=94). This contract establishes the method that the city will follow = in=20 extending services to the newly annexed area. Tex. Loc. = Gov=92t Code =A7 = 43.056(b).

^[14] Tex. Loc. Gov=92t Code =A7 = 43.056(l)=20 (emphasis added). Compare this statute with section 43.052(i): =93If the municipality fails to take action on = the=20 petition, the petitioner may request arbitration of the dispute.=94 It = seems=20 beyond serious dispute that =93fails to take action with regard = to the=20 petition=94 in subsection (l) means exactly the same thing as = =93fails to=20 take action on the petition=94 in subsection (i).

^[15] See Comm'r of=20 Internal Revenue v. Lundy, 516 U.S. 235, 249-50 (1996),=20 superseded by statute, Taxpayer Relief Act of 1997, Pub. L. No. = 105-34,=20 sec. 1282(a), 111 Stat. 1037 (codified as amended at 26 U.S.C. =A7 = 6512); see=20 also Dallas=20 County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, = 873=20 (Tex. 2005) (=93We must interpret a = statute=20 according to its terms, giving meaning to the language consistent with = other=20 provisions in the statute.=94); Paddock v. Siemoneit, 218 S.W.2d 428, 435 (Tex. 1949) = (observing=20 that the same words must be given the same meaning unless context = dictates=20 otherwise).

^[16] Lundy, 516 = U.S. at 250 (internal quotation marks = omitted)=20 (quoting Sullivan v. Stroop, 496=20 U.S. 478, 484 (1990)); = see also=20 Paddock, 218 S.W.2d at 435.

^[17] See Houston, supra note 11, at 5-8 (describing the = furor=20 surrounding the City of Houston=92s = annexation of=20 suburban Kingwood in 1996, a controversy that fueled the Legislature=92s = 1999=20 overhaul of Texas annexation law).

^[18] See supra note = 13.

^[19] Tex. Loc. Gov=92t Code =A7 = 43.056(l)=20 (=93A person residing or owning land in an annexed area . . . may = enforce a=20 service plan by applying for a writ of mandamus . . . .=94).

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

^[21] Besides eviscerating the = arbitration=20 provision in section 43.056(l) regarding service-plan = enforcement, the=20 Court=92s holding also nullifies parts of section 43.056(i) above and beyond the arbitration provision = itself. For=20 example, subsection (i) features a = cost-shifting=20 penalty provision whereby arbitrators can sanction landowners if the = petition=20 was =93groundless or requested in bad faith or for the purposes of = harassment.=94 It=20 is inconceivable, however, that any = right-minded city=20 would ever submit to city-funded arbitration of any petition, = much less a=20 baseless one, if it knew that it could dodge arbitration just by denying = the=20 petition outright.

^[22] At oral argument, the City = insisted that a=20 valid arbitration request alone cannot trigger arbitration or justify a = court=20 order compelling arbitration:

&nbs= p; = ; = =20 COURT: So does 43.052 give a private landowner = any=20 right at any time under any circumstances to sue for an order compelling = arbitration?

&nbs= p; = ; = =20 =20 RESPONSE: = No, it=20 doesn=92t. . . .

&nbs= p; = ; = =20 COURT: So even when the city fails to act one = way or=20 the other, they sit on it for whatever reason, there is still no private = right=20 of action to compel arbitration?

&nbs= p; =20 =20 RESPONSE: = Well,=20 that=92s correct. We take that position. . . . =20

^[23] Cities regard the broad, = unilateral power=20 to annex as a matter of municipal life and death: =93According to many = national=20 authorities, this annexation power is the primary difference between the = flourishing cities of Texas and the declining urban areas = in other=20 parts of the nation.=94 See Houston, supra note 11, at 10.

^[24] Proctor v. Andrews, 972 = S.W.2d 729,=20 733 (Tex.=20 1998) (observing that the Legislature may restrict the power of = home-rule cities=20 that derive their plenary power directly from the=20 Constitution); see also Tex. Const. Art. XI,=20 =A7 5.

^[25] Hunter v. Fort Worth Capital = Corp.,=20 620 S.W.2d 547, 551 (Tex. 1981); = see also=20 Travis County v. Pelzel & Assocs., = Inc., 77=20 S.W.3d 246, 249-50 (Tex. 2002), superseded by = statute,=20 Tex. Loc. Gov=92t=20 Code =A7 262.007; Liberty Mut. Ins. Co.=20 v. Garrison Contractors, Inc., 966 = S.W.2d 482,=20 485 (Tex.=20 1998).

^[26] A true pocket veto occurs when = the=20 President fails to sign a bill passed by Congress within ten days, if = Congress=20 is not in session at the end of those ten days. U.S. Const. = art.=20 I, =A7 7, cl. 2; see also The Pocket Veto Case, 279 U.S. 655 = (1929). Timing=20 is the critical element. The President can only kill legislation with a = pocket=20 veto if Congress adjourns before the ten days expire; if Congress = remains in=20 session, and ten days elapse, then the bill automatically becomes law = without=20 the President=92s signature. U.S. Const. = art.=20 I, =A7 7, cl. 2.

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

^[28] The City argues that two other = Texas = statutes use the=20 phrase =93fails to take action=94 to mean =93fails to take any = action=94 and not=20 overt rejection. See Tex. Loc.=20 Gov=92t Code =A7 232.096 (authorizing commissioner=92s courts to = approve or=20 disapprove plat decisions of a land planning commission and providing = that if=20 the court =93fails to take action=94 within thirty days, the = commission=92s decision=20 becomes final); Tex. Occ. Code = =A7=20 262.1025 (authorizing the State Board of Dental Examiners to review = rules=20 proposed by an advisory committee and providing that if the board fails = to take=20 action on the recommendation within ninety days, it must adopt the=20 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 =93fails to take action=94 for = a specified=20 number of days, the prior decision is ratified by operation of law. The=20 annexation statute, by contrast, lacks this critical =93deeming=94 = feature. The=20 City=92s theory leaves the landowner in perpetual limbo since inaction = is never=20 treated as either approval or rejection of the landowner=92s petition, = no matter=20 how much time elapses. Meanwhile, the challenged annexation proceeds = unabated.=20 The reason the identical phrase =93fails to take action=94 is = interpreted=20 differently in these other statutes is because the surrounding language = is=20 different in these other statutes. Again, context controls.

^[29] According to Black's Law Dictionary, = "action" means=20 "[t]he process of doing something; conduct or behavior." Black's Law Dictionary 31 = (8th ed.=20 2004).

^[30] See, e.g., __ S.W.3d __ = (=93[T]he city failed to take action on it one way or the = other . .=20 . .=94).

^[31] The Legislature, for example, = says if a=20 county planning commission =93fails to take final action=94 on a = completed=20 plat application within sixty days, the applicant may seek mandamus = relief =93to=20 compel the planning commission to approve or disapprove the plat.=94 = Tex. Loc. Gov=92t Code =A7 = 232.096(g)=20 (emphasis added).

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

^[33] In re Pirelli Tire, = L.L.C., __=20 S.W.3d __ (Tex. 2007).

^[34] Again, =93the legislature is = never presumed=20 to do a useless act.=94 Hunter v. Fort Worth = Capital=20 Corp., 620 S.W.2d 547, 551 (Tex. 1981).

^[35] Alex Sheshunoff Mgmt. Servs., L.P. v.=20 Johnson, 209 S.W.3d 644, 651=96-52 (Tex. 2006).

^[36] Act of May 31, 1999, 76th Leg., = R.S., ch. 1167, =A7 4, sec. 43.052(i),=20 1999 Tex. Gen. Laws 4074, 4076-77.

^[37] Alexander Oil, 825=20 S.W.2d at 437.

^[38] The Court posits the specter of = multiple=20 =93individual arbitration proceedings=94 as another basis for its = pro-quo-warranto holding. __ S.W.3d. = __. To=20 be sure, the City and various amici predict = calamitous=20 and =93drastic implications=94 if we interpret the statute to provide a = private=20 arbitration right. I concede that landowner-invoked arbitration may well = saddle=20 cities with real and nonincidental costs. I = also=20 understand the City=92s fear that developers will (1) target areas = within the ETJ=20 for dense, out-of-character projects that clash with the city=92s = overall vision=20 for the area and (2) use arbitration under subsection (i) as a delaying tactic or as negotiating = leverage. These=20 arguments, however, are rooted in policy and prudential concerns, which = are=20 quintessential legislative judgments, not judicial ones. Burdensome or = not, the=20 costs and hassles attending arbitration were, I would conclude, presumed = acceptable by the Legislature, and in any event, avoidable if cities=20 scrupulously complied with the statute=92s three-year annexation plan = requirement=20 in lieu of successive fast-track annexations under (h)(1).

^[39] The City cites Werthmann v. City of Fort Worth, 121 = S.W.3d=20 803, 807 (Tex. App.=97Fort Worth 2003, no pet.); City of Balch = Springs v.=20 Lucas, 101 S.W.3d 116, 122 (Tex. App.=97Dallas 2002, no pet.); = City of San=20 Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.=97San Antonio 2001, = no=20 pet.).