Coffee v. William Marsh Rice University, A--10719

• Citation: 403 S.W.2d 340
• Decision Date: 27 April 1966
• Docket Number: No. A--10719,A--10719
• Parties: John B. COFFEE et al., Petitioners, v. WILLIAM MARSH RICE UNIVERSITY et al., Respondents.
• Court: Supreme Court of Texas

Page 340

403 S.W.2d 340

John B. COFFEE et al., Petitioners, v. WILLIAM MARSH RICE UNIVERSITY et al., Respondents.

No. A--10719.

Supreme Court of Texas.

April 27, 1966.

Rehearing Denied June 1, 1966.

Bracewell, Reynolds & Patterson, William Key Wilde, with above firm, Wright Morrow, Houston, for petitioners.

Baker, Botts, Shepherd & Coates, Tom M. Davis, O. Don Chapoton, Alvin M. Owsley, Jr., and Dillon Anderson, with above, firm, Houston, for respondents.

GREENHILL, Justice.

William Marsh Rice created a charitable trust resulting in the establishment of Rice University. Among other things, the trust instrument specified that the institution should be for white citizens and that it should be free of tuition for all students. Rice University and its trustees, hereinafter referred to as Rice, instituted this action for a construction of the trust instrument and for an application of the equitable doctrine of Cy pres generally for the elimination of the above limitations. Rice named as defendant the Attorney General of Texas, pursuant to Article 4412a which was enacted in 1959. ¹ Two groups intervened (1) John Coffee et al., generally representing themselves and the class of all Rice alumni (beneficiaries of the trust and donors to it) who opposed change, and (2) Charles Bybee et al., who represented themselves and the portion of Rice alumni similarly situated who favored the position of the trustees of Rice University. There was no objection to either intervention, and the trial for the defense was actually carried on in substance by counsel for the intervenors Coffee et al. Trial was to a jury resulting in a verdict for Rice. Judgment was entered for Rice upon the verdict.

The intervenors Coffee et al. appealed to the Court of Civil Appeals sitting in Houston. The Attorney General did not appeal. Rice made no complaint of the capacity or interest of Coffee to appeal. It had no point that those intervenors lacked interest or capacity to appeal. Nevertheless, the Houston court on its own motion held that it had no jurisdiction to consider the appeal because the intervenors did not have sufficient interest to prosecute an appeal. So it declined to consider the case and dismissed the appeal. 387 S.W.2d 132. The narrow question, and the single point of error before us is the correctness of that action. It is our opinion that the conclusion of the Houston Court of Civil Appeals was an erroneous one, and the cause will be returned to that court for a consideration of the merits of the controversy.

The Houston Court of Civil Appeals was of the opinion that Article 4412a made the Attorney General the only party, in the context of this case, who could appeal. Its holding was that the group represented by Coffee lacked a legal interest in the controversy to appeal; and since the Attorney General did not perfect the appeal, the matter was at an end.

The interventions were not contested in the trial courts. So we do not have before us for review any ruling of the trial court on permitting or excluding the interventions. Both groups were permitted to intervene, and the Coffee group was permitted to try the case for the defense. There is a great mass of testimony which fills four volumes. Except for a few isolated questions on cross examination, and an occasional joinder in stipulations of fact, the representative of the Attorney General was silent. The only pleading filed by the Attorney General was a one-page answer in which he neither admitted nor denied the allegations of Rice; he requested the court to require proof and to act in such a manner as to do justice and equity. The real contest came from the intervenors Coffee et al. They filed exceptions to Rice's pleadings, filed pleas in abatement, motions for instructed verdict, made objections to the court's charge to the jury, et cetera. The Attorney General filed none. He position was and is that he was neutral in the matter, and simply wanted to see that all groups were heard, the matter fully developed, and justice done.

After the decision of the Court of Civil Appeals, the Attorney General tendered for filing in that court a motion for rehearing. It urged that court to set aside its order and to consider the case on its merits. That motion states:

'It has been the wish of the Attorney General, the nominal defendant herein and necessary party under the provisions of Article 4412a, Revised Civil Statutes of Texas, that the various segments of the public having different views and interests regarding the relief sought by the trustees of William Marsh Rice University should have an opportunity to contest this action if they desired. It was felt that the people could best be served by the Attorney General in seeing that the case was fully developed and that a court and a jury should decide the issues involved in accordance with the law and the evidence. At the beginning, it was agreed that all parties who desired to intervene herein would be entitled to do so and the Attorney General, so long as this course was being followed, would not actively contest this case, leaving such contest to those parties who might have an interest herein. To this end the Attorney General with knowledge and acquiescence of all parties hereto did not seek to either contest or agree to the relief sought by William Marsh Rice University, but rather sought to see that the evidence was fully developed in the court below. After the jury returned its verdict, and at the hearing on Plaintiff's Motion for Judgment the court was advised that the Attorney General had no objection to Rice University being given some of the relief sought therein although it was felt that the proposed judgment went too far in its scope and effect. At this time the court was informed that the Attorney General would consider the question of appeal and give notice to the court later if he wished to appeal from the Judgment as written.

'Subsequent to the entry of the Judgment but prior to the expiration of the time for giving notice of appeal, a conference was had with attorneys for the intervenors, the Appellants herein, at which time they advised that in their opinion, the Attorney General would not have to be a party to the appeal in order for the Appellants to have a complete hearing on the merits of their appeal from the adverse Judgment in the court below. This decision was reached as the attorneys for the intervenors thought that since their clients had been allowed to intervene and were named as parties for all purposes, had conducted an active contest of the relief sought by William Marsh Rice University, and has raised objections to the evidence presented, they would be entitled both in law and in equity to have this honorable Court hear and determine the grounds of error which they set out as a basis for setting aside the Judgment heretofore entered by the trial court.

'Attorney General Waggoner Carr desires nothing other than to see that this case is fully decided on its merits, both as to law and as to facts, for the protection of the public at large, who are the real beneficiaries of the William Marsh Rice Trust.'

The Court of Civil Appeals, in a per curiam opinion which it ordered not published, refused to consider the Attorney General's motion and stated that it should not be considered as part of the record. The Attorney General, by amicus curiae brief in this Court takes substantially the same position, again stating that 'this brief is not intended to be construed * * * as being an argument for or against the position taken by either Petitioners or Respondents concerning the case on its merits.'

In his brief in this Court, the Attorney General states that while Article 4412a makes him a necessary party, it does not make him the only or preclusive party; and that it was not the intention of the legislature to so alter the common law of this State as to prevent the appeal of anyone other than the Attorney General, in the context of this case. Intervenors Coffee et al. take a similar but stronger position.

This leads us to a construction of Article 4412a which states, among other things, that the Attorney General 'shall be a necessary party' in any suit '(t) o construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust' or '(t)o depart from the objects of a charitable trust as the same are set forth in the instrument * * * including any proceedings for the application of the doctrine of cy pres * * *.' The Attorney General, in such cases, must be served with process; and any judgment rendered without service upon him is declared void and may be set aside upon his motion. He is authorized to settle and compromise any such suit in or out of court, and no compromise or judgment is binding unless he is a party and joins therein. He is given discretion in such matters 'in the best interest of the public.'

The article does not preclude other parties from the trial or appeal of such cases. It does not require the Attorney General to file an answer or to conduct the litigation. He must be a party, he must be served with citation, and he must be a party to any settlement. Rice contends that the statute makes him the sole representative of the public and persons interested in the charitable trust. Rice construes the Attorney General's failure to appeal as amounting to an agreement to the trial court's judgment; and since he can agree to compromises and settlement of litigation, this ended the matter. Rice asserts that intervenors Coffee et al. have no special interest, no legal justiciable interest, no interest different from anyone else of the general public; and that the Court of Civil Appeals correctly decided that it therefore had no jurisdiction to consider the case.

There is much authority outside of Texas that the Attorney General is the representative of the public in suits to enforce or attack a charitable trust or to...