Ex parte Progreso Independent School Dist.

• Decision Date: 17 March 1983
• Docket Number: No. 2503,2503
• Citation: 650 S.W.2d 158
• Parties: 11 Ed. Law Rep. 347 Ex parte PROGRESO INDEPENDENT SCHOOL DISTRICT. cv.
• Court: Texas Court of Appeals

Page 158

650 S.W.2d 158

11 Ed. Law Rep. 347

Ex parte PROGRESO INDEPENDENT SCHOOL DISTRICT.

No. 2503cv.

Court of Appeals of Texas Corpus Christi.

March 17, 1983.

Rehearing Denied April 14, 1983.

Neil Norquest, Ewers & Toothaker, McAllen, for appellant.

Richard W. Harris, Fulbright & Jaworski, San Antonio, Susan Lee Voss, D. Ladd Pattillo, Asst. Attys. Gen., Austin, John F. Dominguez, Mercedes, Charles L. Berry, Vinson & Elkins, Houston, for appellee.

Before BISSETT, YOUNG and KENNEDY, JJ.

OPINION

YOUNG, Justice.

This is an appeal from a judgment declaring that the bond election conducted by the Progreso Independent School District on January 17, 1981, was in all respects proper and valid. We affirm.

The appellants, all residents and taxpayers of the District, sought before the issuance of the bonds to enjoin the issuance of the bonds in an action filed on August 17, 1981. The District then instituted this action for a declaratory judgment and made a motion to consolidate the injunction suit with the declaratory judgment action. The trial court granted the motion.

The appellants have brought forward four points of error for our consideration. In their first point of error, the appellants claim that representatives of the school board misled the voters by incorrectly informing them about the interest rate the bonds would bear and about the possibility of an increase in the tax rate. The second and third points of error present a challenge of unconstitutionality to the provisions of the Texas Constitution and the enabling statute which authorized the election. The appellants contend that because the Texas laws authorizing the election violate the Equal Protection clause of the United States Constitution (U.S. Const. amend. 14), the election was invalid. And in their fourth point, the appellants claim the bonds were validated to be issued at an interest rate higher than allowed by law.

Before we can discuss the substance of any of these points of error, we must dispose of the District's argument that these issues were not properly before the trial court since the appellants did not give timely notice of an election contest. The appellees direct our attention to Tex.Elec.Code Art. 9.03 (Vernon 1967), which requires that any person intending to contest an election give written notice within thirty days of the return day of the election. This provision is applicable to bond elections. See, Moore v. City of Corpus Christi, 542 S.W.2d 720, 722 (Tex.Civ.App.--Austin 1976, writ ref'd n.r.e.); Kelsey v. Corbett, 396 S.W.2d 440 (Tex.Civ.App.--El Paso 1965, writ ref'd n.r.e.); Weinberg v. Molder, 312 S.W.2d 393 (Tex.Civ.App.--Waco 1958, writ ref'd n.r.e.); Rawson v. Brownsboro Independent School District, 263 S.W.2d 578 (Tex.Civ.App.--Dallas 1953, writ ref'd n.r.e.). The thirty-day notice requirement is mandatory and may not be waived by the parties, Walker v. Thetford, 418 S.W.2d 276, 280 (Tex.Civ.App.--Austin 1967, writ ref'd n.r.e.) because it is jurisdictional.

Since there was no notice of an election contest within thirty days, the appellees argue that all objections relating to the election itself are forever waived. The District urges us that Tex.Elec.Code Art. 9.36 (Vernon 1967) controls. That statute provides that "If no contest of said election is filed and prosecuted in the manner and within the time herein provided for, it shall be conclusively presumed that said election as held and the result thereof as declared are in all respects valid and binding upon all courts...."

The appellants do not dispute their failure to comply with the Election Code. Instead, they argue that the filing of the declaratory judgment action by the Progreso Independent School District put in issue the validity of the election. This District action was filed under Tex.Rev.Civ.Stat.Ann. Art. 717M-1 § 2 (Vernon Supp.1982), which is as follows:

"Declaratory Judgment

Sec. 2 Any public agency may, prior to or after the issuance and delivery of any securities, institute a proceeding in rem in district court by filing a petition as provided by this Act, for the purpose of obtaining a declaratory judgment as to the authority of the public agency to issue and deliver the securities and as to the legality and validity of all proceedings, including all actions and expenditures of funds, taken or made and/or proposed to be taken or made in connection with or affecting any securities, including, in appropriate cases, the validity of the election, if any, at which the securities were authorized, and the organization or boundaries, if any, of the public agency, any assessments or taxes levied or to be levied, and the lien of the taxes, the validity of any contract or contracts executed or proposed to be executed with respect to the securities, the levy of rates, fees, charges, or tolls, and of proceedings or other remedies for the collection of such taxes, rates, fees, charges, or tolls, the legality and validity of the pledge of any taxes, revenues, receipts, or property, or encumbrance thereon to secure said securities, and as to the legality and validity of the securities and proceedings. The petition may be filed in any district court of Travis County, Texas, or, at the option of the public agency, in any district court of the county in which the public agency maintains its principal office, as a class action against the taxpayers, property owners, and residents, if any, of the public agency, and all nonresidents, if any, owning property therein, and/or all others having or claiming any right, title, or interest in any property or funds to be affected by the proceedings and/or the issuance of the securities, or interested or affected in any way thereby, or by the proceedings, including all actions and expenditures of funds, taken or made and/or proposed to be taken or made in connection with or affecting the securities." (Emphasis added.)

The appellants contend that Article 717m-1 gave the trial court authority to consider the validity of the election. With respect to the thirty-day notice, the appellants point out that the declaratory judgment action was timely filed and that the provisions of Article 717m-1 prevailed. See Article 717m-1 § 13. We agree with the appellants that, although the requirements of the Texas Election Code were not met, the trial court could properly consider the validity of the election in the declaratory judgment action. The District's petition alleged that the election was duly held and requested the court to declare that "all proceedings taken in connection with the authorization and issuance of the proposed bonds ... be validated and confirmed....." We hold that the District put in issue those matters of which the appellant complains. Since these matters were properly before the trial court, we now consider their merits.

We shall first discuss the constitutional questions. The appellants claim that the Texas laws which authorize bond elections deny equal protection to otherwise qualified voters who do not render property. The pertinent laws are set forth below "... the Legislature may authorize an additional ad valorem tax to be levied and collected within all school districts heretofore formed or hereafter formed, for the further maintenance of public free schools, and for the erection and equipment of school buildings therein; provided that a majority of the qualified property taxpaying voters for the district voting at an election to be held for that purpose, shall vote such tax...." Tex.Const. Art. 7 § 3

"(a) No such bonds shall be issued and none of the aforesaid taxes shall be levied unless authorized by a majority of the resident, qualified electors of the district, who own taxable property therein and who have duly rendered the same for taxation, voting at an election held for such purpose." Tex.Education Code § 20.04.

The United States Supreme Court has issued a series of decisions concerning statutes which exclude otherwise qualified voters from participating in elections. The first of these cases struck down a New York statute which restricted eligibility to vote for school board members to residents who 1) owned (or leased) taxable real property within the district or 2) were the parents of children enrolled in local public schools. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). Because the statute concerned the right to vote, which is a fundamental right, the Court subjected it to exacting examination to determine whether the denial of the right to vote to a class of p...