Pyote Independent School Dist. v. Estes, 5747

• Citation: 390 S.W.2d 3
• Decision Date: 14 April 1965
• Docket Number: No. 5747,5747
• Parties: PYOTE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Carl D. ESTES et al., Appellees.
• Court: Texas Court of Appeals

Page 3

390 S.W.2d 3

PYOTE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Carl D. ESTES et al., Appellees.

No. 5747.

Court of Civil Appeals of Texas, El Paso.

April 14, 1965.

Rehearing Denied May 5, 1965.

Murray J. Howze, Monahans, Hill D. Hudson, Pecos, for appellant.

R. B. McGowen, Jr., Pecos, T. H. Neel, A. R. Archer, Jr., Monahans, for appellees.

PER CURIAM.

This is an appeal involving substantially the same parties involved in our previous opinion, numbered 5740, which bears the same date as this opinion, styled Lasater et al., Appellants, v. Middleton et al., Appellees, 390 S.W.2d 8. In the case before us the appellant (plaintiff in the court below) appealed to the District Court from an order of the County School Trustees of Ward County, Texas consolidating the Pyote Independent School District with the Monahans-Wickett Independent School District. From an adverse ruling of the District Court, appellant has perfected its appeal. Appellant presents six points of error, and we shall take them up in the order presented.

In Point 1 appellant claims that the court erred in refusing to allow appellant to file its First Supplemental Petition and to allow evidence thereon.

With reference to Point 1, it appears that on the morning of August 12, 1964, just as this case was to go to trial before the District Court, the Supplemental Petition was presented by the appellant. It was objected to by appellees on the ground that it was actually an amended petition, and that such petition attempted to attack, for the first time in this particular lawsuit, the election of one A. J. Staas as School Trustee from Precinct 4, Ward County, Texas. As stated in our former opinion, Mr. Staas received 24 write-in votes at the Pyote election. It was stipulated that while no election was called by the County Judge for the election of County School Trustees nevertheless the write-in votes were cast at the time and place for the election of County School Trustees from Precinct 4. Articles 2746c and 2676, T.R.C.S., Vernon's Ann.Civ.St. arts. 2746c, 2676, provide that dual elections may be held on this statutory day; in other words, the electorate may vote for both independent school district candidates and county school district candidates. As we have held in our former opinion, the election ofA. J. Staas could not be attacked at this time except by quo warranto proceedings. Other than to mention that the time for statutory election contests had elapsed, we will not elaborate on our prior discussion of this matter. Williams v. Castlemen, 112 Tex. 193, 247 S.W. 263; Kunschik v. Nichols, 135 Tex. 1, 137 S.W.2d 1000. The matter is further discussed in Whitmarsh v. Buckley, Tex.Civ.App., 324 S.W.2d 298 (n.w.h.), and reference is made to this particular case and the cases cited therein. Also passing on this matter are the following cases: McFarlin v. State, 272 S.W.2d 630 (Tex.Civ.App., wr.ref.); Willborn v. Deans, 240 S.W.2d 791 (Tex.Civ.App., n.r.e.); 47 Tex.Jur.2d 568, Sec. 5. These cases illustrate what we have said before--that where an attack is made against the election of a public official or officer by one not asserting an adverse claim for such office, it occupies a different position than election contest which has for its purpose the declaration of the invalidity of activities or actions of certain boards or corporate bodies. An attack on the election of a public officer by one not asserting an adverse claim must be made either by a statutory election contest brought within the time provided, or by quo warranto proceedings. To hold otherwise would be to say that a member of some school board, or other corporate body, might be elected and serve for months, or even a year or more, and then his election be contested because of the way he voted or behaved on such board. This is not and never has been the intent of the law. The case of Cunningham v. Queen, Tex.Civ.App., 96 S.W.2d 798, cited by appellants, has to do with write-in votes cast at a run-off, or second primary. We do not think this case is in point. We should also like to reiterate that Article 4.04, Texas Election Code, V.A.T.S., grants the electorate the right to express its desires at the polls regardless of the failure or failures of some election official. It is also provided within our Texas Constitution that the potential power is inherent in the people. In overruling this point we again cite Bryant v. O'Donnell, 359 S.W.2d 281 (Tex.Civ.App., n.w.h.), and Carpenter v. Longuemare, 153 Tex. 439, 270 S.W.2d 457.

Further, it has been held that in order to protect the public and individuals, an officer whose election or appointment might be illegal and invalid is still a de facto official, and such is particularly true where there is an office to fill and an election had at the time and place authorized by statute. Boesch v. Byrom, 37 Tex.Civ.App. 35, 83 S.W. 18 (er.ref.). It is also held that the authority of a de facto official and his right to hold office may not be questioned in a collateral proceeding, but should properly be tested in a quo warranto proceeding. Bowen v. Board of School Trustees, Tex.Civ.App., 16 S.W.2d 424. Appellees point out in their brief that appellant had plenty of opportunity to file a statutory election contest, but did not do so, and did not attack the validity of Mr. Staas' election until the proceedings to annex the Pyote Independent School District came under consideration by the Ward County School Trustees. Also, with respect to this first point, it must be pointed out that the presiding judge has considerable law and discretion at his command with reference to his acceptance of this type of pleading presented at the time it was. Rule 63, Vernon's Texas Rules of Civil Procedure. Appellant's first point is overruled.

Appellant's Point 2 does not present anything new except the statement that the court refused to allow appellant the opportunity to introduce evidence that the order of the County School Trustees of Ward County, Texas in annexing the Pyote Independent School District was null and void and permeated by fraud and deceit. But, as appellees point out, nowhere in appellant's brief is cited any place in the transcript, or statement of facts, indicating such refusal on the part of the court, and there is no evidence of fraud or deceit offered by the plaintiff in the trial court and refused. Point 3 alleges that the County Board of Trustees as constituted is illegal; but again, this seems to be an attack based on the alleged illegal election of A. J. Staas, and we have already held, and consider it clear, that this is an improper action, and not a quo warranto as required by law. Even though there is no clear evidence of the refusal of the evidence alluded to, it still is not important, because it would only apply to a matter that is not properly before the court because a quo warranto proceeding was not filed. Also, it will be noted that only the illegal status of A. J. Staas was attacked. Points 2 and 3 of appellant's brief are overruled.

Appellant's Point 4 alleges that the court erroneously applied the doctrine of res judicata on the ground that the matter of whether this matter should be a quo warranto proceeding or not was brought up in a previous trial that had not been...