Brownsville Independent School Dist. v. Gamboa

• Decision Date: 31 July 1973
• Docket Number: No. 777,777
• Citation: 498 S.W.2d 448
• Parties: BROWNSVILLE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Graciela GAMBOA et al., Appellees.
• Court: Texas Court of Appeals

Page 448

498 S.W.2d 448

BROWNSVILLE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Graciela GAMBOA et al., Appellees.

No. 777.

Court of Civil Appeals of Texas Corpus Christi.

July 31, 1973.

Rehearing Denied Aug. 31, 1973.

Garcia & Warburton, J. O. E. Warburton, Brownsville, for appellant.

J. L. Covington, Pharr, for appellees.

OPINION

YOUNG, Justice.

This is a suit to enjoin the Brownsville Independent School District from excluding Graciela Gamboa and Elias Guerra from its public free schools.

After it conducted separate hearings for each of the children, the board of trustees of the school district, based upon residence requirements in its admission policy, denied admission to both children. The trial court denied the request of the plaintiff Gamboa for a temporary injunction. She appeals from that part of the order. The trial court granted the request of plaintiff Guerra for a temporary injunction. From that part of the order the school district appeals.

The question to be decided is whether there was substantial evidence that the plaintiff children resided in the school district in compliance with the meaning of the term 'resides' as it is used in V.T.C.A., Education Code § 21.031. Pertinent provisions of § 21.031 are as follows:

'(b) Every child in this state over the age of six years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission notwithstanding the fact that he may have . . . attended school elsewhere for a part of the year.

(c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons over six and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district.'

On September 5, 1972, the board of trustees of the defendant school district adopted the following admissions policy:

'Pupils . . . will be further required to have residence within the district with a parent or guardian, legally appointed by a court of competent jurisdiction, having lawful control and legally residing in the district. Pupils who have one or both parents living are presumed to reside with such parents or parent unless proved otherwise to the satisfaction of the Board of Trustees.'

Each of the plaintiff children is eight years old and is an American citizen by reason of birth in Texas. Until reaching school age, each has lived in Mexico since infancy with parents who are Mexican citizens. Before attempting to enroll in the schools of Brownsville, each child entered and completed one year of school in Matamoros, Mexico.

First, we will consider the merits of the residence contention of plaintiff, Elias Guerra. On November 21, 1972, the defendant school met in regular session and the minutes of that meeting reflect the following:

'Elias Guerra--Lived with aunt in Brownsville. Aunt hold guardianship letter issued August 1971. Parent live in Matamoros and are both Mexican citizens. Child is an American citizen. He is commuting now because grandmother is ill and the aunt is not able to take care of him at this time. After discussion, motion . . . carried to deny admission of Elias Guerra to attend Brownsville Schools since parents live out of district and the boy is in Brownsville only for the purpose of attending school.'

The findings of a school board must be supported by substantial evidence. Patillo v. County School Trustees of Wilson County, 235 S .W.2d 924 (Tex.Civ.App.--San Antonio 1951, no writ); Canutillo Independent School District v. Anthony Independent School District, 442 S.W.2d 916 (Tex.Civ.App.--El Paso 1969, n.r.e.). The determination of whether there existed substantial evidence at the time findings were made is based upon the evidence presented to the trial court. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 440 (1946). See Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 Southwestern Law Journal 239, 240 (1969).

Relative to the Guerra child, the evidence concerning his residence shows that in July 1971 he left his parents' home near Matamoros and came to live with his maternal aunt, Evangelina Almaguer, in Brownsville at an address within the school district. He has lived there with her ever since. In August of the same year, the aunt was appointed guardian of the person of the nephew. She enrolled him in a school of the defendant school district where he attended all of the 1971--1972 school year. He was enrolled in the same school for the school year 1972--1973 and was attending regularly until he was suspended from school by action of the school board, as reflected in its minutes, supra. Sometime in November 1972, as the Guerra child was coming across the bridge from Matamoros to Brownsville, he was stopped and questioned by a customs officer, who was also a member of the school board of the defendant school district. The customs officer referred the child to the school attendance officer. After a conference with the child and his aunt, the attendance officer told the child and the aunt to take the matter up with the school board. Subsequently they did so. At the trial, Mrs. Almaguer gave her explanation of the child's coming from Matamoros to Brownsville to attend school. At this time there was an illness in the family requiring her attention. Consequently, the plaintiff nephew and another...