Ex parte Progreso Independent School Dist., No. 2503

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

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.

Page 160

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.

Page 161

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...