Marshall v. Brown
| Decision Date | 29 April 1982 |
| Docket Number | No. 07-82-0036-CV,07-82-0036-CV |
| Citation | 635 S.W.2d 578 |
| Parties | 5 Ed. Law Rep. 677 Bailey MARSHALL, et al., Appellants, v. Billy Bob BROWN, et al., Appellees. |
| Court | Texas Court of Appeals |
Mark White, Atty. Gen., Virginia Ellen Daugherty, Chris Hanger, Asst. Attys. Gen., John Fainter, Jr., First Asst. Atty. Gen., Richard E. Gray, III, Executive Asst. Atty. Gen., Paul R. Gavia, Asst. Atty. Gen., Austin, for appellants.
Wayne B. Barfield, Edward L. Poole, Amarillo, for appellees.
Before REYNOLDS, C. J., and DODSON and COUNTISS, JJ.
Billy Bob Brown, individually and as next friend and father of Kevin Brown, and Kevin Brown, individually and as representative of a class of varsity athletes, brought this action to enjoin Bailey Marshall, the University Interscholastic League and the Panhandle Independent School District, from enforcing the "summer camp rule." 1 The trial court certified the proceedings as a class action. At the initial injunctive hearing, the court ordered the granting of a temporary injunction and, upon the stipulation that the same evidence and argument of counsel be considered in granting a permanent injunction, the court ordered the issuance of a permanent injunction prohibiting the enforcement of the rule. 2
The University Interscholastic League and its director, Bailey Marshall (both hereinafter referred to as the UIL), represented by the Attorney General of Texas, and the Panhandle Independent School District (hereinafter referred to as PISD), represented by private counsel, filed written notices of appeal. See Tex.R.Civ.P. 354 & 356. Submitting the appellate record, the UIL and PISD contend that the trial court erred in certifying a class, and abused its discretion both in failing to apply the law to the undisputed facts and in finding that the UIL was not a state agency. 3
As a first response, Brown (an appellation for all of the plaintiffs) moved for a dismissal of the UIL's appeal. The basis of Brown's motion is that this Court has no jurisdiction of the appeal because the UIL failed to properly and timely execute a bond for costs. The UIL replied, contending that no appeal bond was necessary because it has status as a state entity. 4 Alternatively, the UIL requests that we consider vacating the order of the trial court and remanding these proceedings for a further inquiry into its exact status, even though, as recorded in marginal note 3, the trial court has passed on the status of the UIL.
A court must notice, even sua sponte, the matter of its own jurisdiction, for jurisdiction is fundamental in nature and may not be ignored. Lamka v. Townes, 465 S.W.2d 386 (Tex.Civ.App.-Amarillo 1971, writ ref'd n. r. e.). The question whether the UIL is "excused by law" from giving security for costs so as to invoke, by notice of appeal, the jurisdiction of the appellate court to entertain the merits of its appeal was decided this day in University Interscholastic League v. Payne, No. 07-81-0285-CV (Tex.App.-Amarillo, April 29, 1982, not yet reported). There, after an extensive inquiry into the UIL's appellate status, including the status it now claims, we held, on the rationale expressed, that the UIL is not "excused by law" from giving security for costs in order to perfect an appeal. As a result, we dismissed the appeal in Payne for want of jurisdiction.
The record before us neither warrants a different determination nor justifies further inquiry into the UIL's appellate status. We have carefully reviewed the record upon which the trial court made its factual finding respecting the UIL's status. It suffices to state that the finding is supported by evidence of probative force and, thereby, we are bound by the finding. Tenneco, Inc. v. Polk County, 560 S.W.2d 416, 417 (Tex.Civ.App.-Beaumont 1977, no writ). Moreover, the organizational aspects of the UIL as revealed by this record were fully explored in Payne preliminarily to our finding that the UIL is not "excused by law" from giving the security legally required to perfect an appeal. The rationale and holding expressed in Payne are peculiarly applicable to the UIL's appeal. Therefore, Brown's motion to dismiss the UIL's appeal for want of jurisdiction is granted.
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