Byrnes v. University of Houston

• Decision Date: 13 March 1974
• Docket Number: No. 946,946
• Citation: 507 S.W.2d 815
• Parties: James BYRNES, Appellant, v. UNIVERSITY OF HOUSTON et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 815

507 S.W.2d 815

James BYRNES, Appellant, v. UNIVERSITY OF HOUSTON et al., Appellees.

No. 946.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

March 13, 1974.

Rehearing Denied April 3, 1974.

Peter D. Williamson, Houston, for appellant.

John L. Hill, Atty. Gen. of Tex., Sam L. Jones, Jr., Asst. Atty. Gen., Austin, for appellees.

CURTISS BROWN, Justice.

This is a suit for a declaratory judgment and for the recovery of money paid.

Appellant James Byrnes brought suit against the University of Houston (the University) and the University's Assistant Registrar, Mario Lucchesi. He sought a declaratory judgment that he was a resident of Texas for tuition purposes under the present regulations of the Coordinating Board of the College University System. In connection with this relief he sought recovery of money that he alleged he was wrongfully made to pay under a nonresident status. He further sought a declaratory judgment that the rules and regulations of the Coordinating Board were in violation of the due process provisions of the United States and Texas Constitutions. At the time this suit was brought, appellant was also a plaintiff in a class action brought in the Federal District Court for the Southern District of Texas, styled Marvin Wurzer et al. v. The University of Houston et al., Civil Docket No. 73--H--302. The plaintiffs in that federal court action sought, among other relief, a declaratory judgment that each plaintiff and the members of the class are residents of the state of Texas, a declaratory judgment that the rules of the Coordinating Board and the statutes under which those rules were promulgated are unconstitutional, and recovery of excess tuition fees charged on the basis of a nonresident status.

Defendants in the state court action entered a plea to the jurisdiction and in abatement, alleging that the plaintiff was a party to a case in the federal court on the same issues, and claiming sovereign immunity. The trial court granted the plea and dismissed the case, relying on both grounds in the defendants' plea.

At the time of the court's ruling on the defendants' plea, the federal court action was pending. Nevertheless, the pendency of a suit in federal court does not abate a state court action. Aetna Casualty & Surety Company v. Brunken, 373 S.W.2d 811 (Tex.Civ.App.--Eastland 1963, writ ref'd n.r.e.); Trinity Universal Ins. Co. v. De Martini, 118 S.W.2d 901 (Tex.Civ.App.--El Paso 1938, writ ref'd). Therefore, insofar as the plea may have been based upon the ground that there was 'another action pending,' the plea in abatement was not well taken and should not have been sustained.

Nevertheless, this suit also involves a prayer for declaratory relief under the Uniform Declaratory Judgments Act, Vernon's Tex.Rev .Civ.Stat.Ann. art. 2524--1 (1965). The Supreme Court in Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.Sup.1970), stated the general rule:

(A)n action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action.

See also Dub Shaw Ford, Inc. v. Comptroller of Pub. Accounts, 479 S.W.2d 403, 406 (Tex.Civ.App.--Austin 1972, no writ); Pickens v. Hidalgo County Water Control & Imp. Dist., 284 S.W.2d 784 (Tex.Civ.App.--San Antonio 1955, no writ); Joseph v. City...