Harper v. Taylor

• Decision Date: 15 December 1972
• Docket Number: No. 7421,7421
• Citation: 490 S.W.2d 227
• Parties: Emmett HARPER et al., Appellants, v. Wesley TAYLOR et al., Appellees.
• Court: Texas Court of Appeals

Page 227

490 S.W.2d 227

Emmett HARPER et al., Appellants, v. Wesley TAYLOR et al., Appellees.

No. 7421.

Court of Civil Appeals of Texas Beaumont.

Dec. 15, 1972.

Motion for Rehearing Overruled Jan. 11, 1973.

Larry Germer, Orgain, Bell & Tucker, Beaumont, for appellants.

Jim Fuller, Fuller, Fuller & McPherson, Port Arthur, for appellees.

DIES, Justice.

The State of Texas, upon relation of appellees, instituted this suit to remove appellants as trustees of the Nederland Independent School District. The grounds for removal alleged incompetency as defined in Art. 5972, Vernon's Ann.Civ.St. The jury found each of the appellants incompetent and a judgment of removal followed the verdict. The judgment provided 'if an appeal is taken, that this order will not become effective and the Trustees will continue in office until the Appellate process is exhausted and unless and until this order is affirmed by said Appellate Courts.' Portions of the instructions to the jury and their answers appear in the footnote to this opinion.* Appellees frankly admit that the single act of 'incompetency' arose from the action of appellants, a majority of the Board of Trustees, in terminating the contract of the district's superintendent. This they did on June 19, 1972, by resolution. This resolution gave the superintendent the choice to accept the termination and receive his salary for the remainder of the contractual period. He chose to do this.

It is unnecessary to recount the evidence in detail. The issue of retaining or replacing this superintendent had been before the school board for a number of years. This became a political issue put forward by some candidates to the electorate of the district. Previously, the 'pro-superintendent' trustees held a majority on the board, but the pendulum swung, giving the 'anti-superintendent' trustees a majority, which made possible the resolution of June 19.

Appellees in their brief summarize the contentions of the parties thusly:

'All Appellants' Points of Error One through Five present in various different ways, the same basic question, to-wit: That there was no evidence; or, in the alternative, there was insufficient evidence to support the submission of the case to the Jury and/or to support a finding of the Jury that the appellants are guilty of 'incompetency' under the law; and therefore, subject to removal. If this Court is prepared to hold that a majority of a Board of Trustees of a political subdivision may terminate an otherwise valid contract, thereby requiring the expenditure of district funds with no reason therefor other than that they have the power (by virtue of being a majority) to do so, then Appellees would readily concede that Appellants' position is correct.'

We are not prepared to go quite as far as challenged by appellees. We do not have here a case of arbitrary, capricious or oppressive action, or the violation of any statutory duty. Instead, as admitted by appellees in oral argument, the thrust of their complaint is that appellants did not give their reasons At the time of the adoption of the resolution terminating the superintendent. The record is replete with reasons advanced by the appellants at the trial; and, we do not in our disposition of the case reach the question of the validity of the reasons given by appellants. The critical issue is this: Were the appellants, constituting the majority of the Board of Trustees, required, as a matter of law subject to removal for incompetency for failure, to assign reasons for their action at the time such action was taken? We think not.

By statutory law, 'The trustees (of independent school districts) shall have the exclusive power to manage and govern the public free schools of the district.' Education Code § 23.26(b), V.A.C.S. Section 23.28 of the Education Code authorizes the Board of Trustees to employ a superintendent by contract. This contract may be terminated by mutual agreement during its existence. Hardison v. Beard, 430 S.W.2d 53, 56 (Tex.Civ.App., Dallas, 1968, error ref. n.r.e.).

In our case, as above noted, the superintendent chose to accept the contract balance and depart, but he could have requested a public hearing with appeal therefrom to the State Board of Education. See Crystal City Independent School Dist. v. Briggs, 486 S.W.2d 829 (Tex.Civ.App., Beaumont, 1972, writ pending.).

Appellees have cited no statute requiring municipal governing bodies to state their reasons for taking discretionary action within their jurisdiction. There is no such legal obligation imposed by the general law. See Boynton v. Brown, 164 S.W. 893, 896 (Tex.Civ.App., San Antonio, 1914, error ref.).

This leaves the charge that the termination of the superintendent was politically motivated. As was said in Texas State Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 414 (Tex.1965):

'It was recognized long ago that in reviewing acts of administrative agencies the courts are not to investigate the methods they adopt or the Motives or purposes which prompt their action.' (Emphasis ours.)

The late Justice Norvell in State v. Reyna, 160 Tex. 404, 333 S.W.2d 832, 838 (1960), stated in a brilliantly written decision why courts must refrain from interference in school affairs:

'Such a course could well result in handing to those engaged in local political squabbles another battle weapon which, when used, would embroil the judiciary in contests essentially political in nature and hence better left to other authorities, entities, or to the electorate itself.'

In the Reyna case, removal of the school trustees was sought because of official misconduct as defined in Art. 5973, V.A.C.S., and not for incompetency as defined in Art. 5972, as in our case. However, we believe the broad language and unanswerable logic of the opinion is applicable to both statutes.

'An elective office would be subject to forfeiture should a public official, individually or as a member of a public board assume an undertaking such as the holding of an election, the allocating of public funds between various areas or departments of the district and its schools, or the adopting of a pupil placement program, and then in the opinion of a district judge or a district court jury, fail to carry out the plan or program in a fair and impartial manner. This is another way of saying that if any program be attacked as being unfair, partial or inequitable, an elected public official may be removed from office upon a judge's or jury's opinion that the charges made are true. As to such matters, the law does not purport to substitute the judgment of judge or jury for that of duly elected school officials, and in the absence of a clear mandate, the judiciary should not interfere in the operation of school districts or other local governmental agencies by removing elected public officials from office.' (333 S.W.2d at 838--839)

We do not believe the case cited by appellees, Tautenhahn v. State, 334 S.W.2d 574 (Tex.Civ.App., Waco, 1960, error ref. n.r.e.), supports their position. There, the trustees had deliberately set a tax rate which was insufficient to operate the schools for the entire term, wholly disregarding their statutory duty. The court...