Passel v. Fort Worth Independent School District, B--1018

• Decision Date: 16 April 1969
• Docket Number: No. B--1018,B--1018
• Citation: 440 S.W.2d 61
• Parties: Janie PASSEL et al., Petitioners, v. FORT WORTH INDEPENDENT SCHOOL DISTRICT et al., Respondents.
• Court: Texas Supreme Court

Page 61

440 S.W.2d 61

Janie PASSEL et al., Petitioners, v. FORT WORTH INDEPENDENT SCHOOL DISTRICT et al., Respondents.

No. B--1018.

Supreme Court of Texas.

April 16, 1969.

Rehearing Denied May 14, 1969.

Garrett, Garrett & Callaway, Rufus S. Garrett, Jr., Fort Worth, for petitioners.

Morgan, Gambill & Owen, Cecil A. Morgan, Fort Worth, for respondents.

WALKER, Justice.

This suit was brought by a number of high school students and their parents against the Fort Worth Independent School District and the members of its Board of Education. Plaintiffs seek a judgment declaring that Article 301d, Vernon's Ann.P.C., is unconstitutional and enjoining defendants from denying the minor plaintiffs admission to the schools because of membership in one of the so-called charity clubs. Defendants interposed pleas to the jurisdiction, asserting: (1) that plaintiffs had not exhausted their administrative remedies, and (2) that the action is an improper attempt to have a court of equity pass on the validity of a criminal statute without any showing of irreparable injury to vested property rights. After a hearing on the application for a temporary injunction, the trial court sustained the pleas to the jurisdiction and dismissed the cause. The Court of Civil Appeals affirmed. 429 S.W.2d 917. We reverse the judgments of the courts below and remand the cause to the district court.

By the provisions of Article 301d, public school fraternities, sororities and secret societies as there defined are declared to be inimical to the public good and are prohibited in all public schools of the state below college level. In so far as material here, the statute further provides:

'Sec. 2. A Public School Fraternity, Sorority, or Secret Society as used in this Act is hereby defined to be any organization composed wholly or in part of public school pupils of public schools below the rank of College or Junior College as herein provided, which seeks to perpetuate itself by taking in additional members from the pupils enrolled in such school on the basis of the decision of its membership rather than upon the free choice of any pupil in the school who is qualified by the rules of the school to fill the special aims of the organization.

'Sec. 4. It should be the duty of School Directors, Boards of Education, School Instructors and other corporate authority managing and controlling any of the Public Schools of this State within the provisions of this Act, to suspend or expel from the school under their control any pupil of such school who shall be or remain a member of, or who shall join or promise to join, or who shall become pledged to become a member of, or who shall solicit any other person to join, promise to join, or be pledged to become a member of any such Public School Fraternity, or Sorority, or Secret Society. Providing that the above restrictions shall not be construed to apply to agencies for Public Welfare, viz: Boy Scouts, Hi-Y, Girl Reserves, DeMolay, Rainbow Girls, Pan-American Clubs, and Scholarship Societies, and other kindred educational organizations sponsored by the State or National education authorities.'

As originally enacted in 1937, the statute applied only in counties having a population of not less than 320,000 and not more than 350,000 inhabitants. It was amended in 1949 and made applicable in all counties of the state. On November 9, 1966, the Board of Education of the Fort Worth Independent School District adopted a supplementary enrollment application form and a rule effective September 1, 1967, requiring all pupils to submit the completed form as part of their application for enrollment. The form is as follows:

'As required by the Board of Education in compliance with Article 301d, of the Texas Penal Code, which reads as follows:

(Article 301d quoted in full)

'I hereby certify that my son/daughter is not now a member or a 'pledge' of any club or organization as defined above and that he/she will not join or participate in any way in the activities of such a club or organization.

'Witness my hand this day of , 19 .

_ _ th

Signature of Parent or Guardian'

Each of the minor plaintiffs is, or was at the time suit was instituted, a member of one of the charity clubs. These clubs fall within the terms of the definition found in section 2 of Article 301d. They are perpetuated by taking in additional members from pupils enrolled in the schools on the basis of the decision of the membership. A student is not allowed to join by his own free choise even though he may be qualified by the rules of the school to fill the special aims of the organization. The clubs hold regular meetings, sponsor social functions, and make financial contributions to worthwhile charities. Their meetings and social functions are held off school premises and during hours when school is not in session. The extent to which the clubs and their activities may affect the operation of the schools is not fully disclosed by the present record. It appears that on at least one occasion part of the initiation procedure was conducted on school premises. The athletic programs have been so disrupted that the coaches at two high schools prohibited participation by any student who belonged to one of the clubs. There is no evidence tending to show that the clubs do not have an adverse effect on the schools except the proof concerning the places and hours of their meetings and social functions.

Plaintiffs contend that Article 301d does not apply to the charity clubs. They say that if it does, the statute is unconstitutional either on its face or in its application. They first filed suit in the United States District Court seeking substantially the same relief that is sought here. That proceeding was stayed by the court 'until the courts of the State of Texas shall have been afforded the opportunity to determine the constitutional questions here presented, and until the administrative remedies available to the plaintiffs have been utilized.' The present suit was then filed.

It has been said that the power and authority to interpret criminal statutes rests solely with the courts of this state exercising criminal jurisdiction. Crouch v. Craik, Tex.Sup., 369 S.W.2d 311. We have already confessed that this statement is much too broad. State v. Shoppers World, Inc., Tex.Sup., 380 S.W.2d 107. It is well settled that courts of equity will not interfere with the ordinary enforcement of a criminal statute unless the statute is unconstitutional and its enforcement will result in irreparable injury to vested property rights. City of Fort Worth v. Craik, Tex.Sup., 411 S.W.2d 541. The underlying reason for this rule is that the meaning and validity of a penal statute or ordinance should ordinarily be determined by courts exercising criminal jurisdiction. When these questions can be resolved in any criminal proceeding that may be instituted and vested property rights are not in jeopardy, there is no occasion for the intervention of equity. A person may continue his activities until he is arrested and then procure his release by showing that the law is void. See City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 28 S.W. 528.

It has also been said that courts of equity are concerned only with the protection of civil property rights. Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294. This is not the modern view, and it seems clear to us that the Texas statute is broad enough to authorize the granting of an injunction for the protection of personal rights. See Article 4642; ¹ Ex parte Warfield, 40 Tex.Crim., 413, 50 S.W. 933; Hunt v. Hudgins, Tex.Civ.App., 168 S.W.2d 703 (no writ); Hawks v. Yancey, Tex.Civ.App., 265 S.W. 233 (no writ); Annotation, 175 A.L.R. 438; Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640; Long, Equitable Jurisdiction to Protect Personal Rights, 33 Yale L.J. 115.

Plaintiffs are not attempting to enjoin prosecutions under Article 301d. Apparently no prosecution is threatened or even contemplated. Injunctive relief is sought to prevent administrative enforcement of an administrative regulation adopted for the purpose of implementing the statute. The rule of the Board of Education requires a student to furnish, as part of his application for admission, a statement that he is not and will not become a member of one of the organizations prohibited by Article 301d. Although defendants argue that no one has been denied the right to attend school, there is nothing in the present record to warrant the belief that a pupil who refused to furnish the statement would be permitted to enroll.

Plaintiffs contend that the statute and rule, if applicable to the charity clubs, constitute an unwarranted interference with the constitutionally protected right of free and private association. If this contention is sound, enforcement of the rule adopted by the Board will mean that a student cannot enjoy the benefits to which he is entitled under the provisions of Article 2902 ² unless he is willing to be circumscribed in the exercise of one of his constitutional rights. The criminal courts cannot determine the meaning and validity of the statute unless a prosecution is instituted, and plaintiffs have no way to attack the rule except by an administrative appeal or a civil action. The civil courts are not powerless to grant relief under these circumstances, and we hold that the trial court erred in dismissing the cause on the ground that it had no jurisdiction to construe and determine the constitutionality of the criminal statute in this proceeding.

The case was also dismissed because plaintiffs had not exhausted their administrative remedies. According to a letter opinion which appears in the transcript, the trial court concluded that there should be an administrative determination, by the State Commissioner of Education or the State Board of Education on appeal from the action of the local Board, as to: (1) whether Article...