# Charles G. Rawls v. Woodville ISD, Lisa Meysembourg, and Donece Gregory

> Texas Court of Appeals, 9th District (Beaumont) · August 31, 2022

URL: https://www.frixlaw.com/law-library/cases/7805884

## Case

- **Court:** Texas Court of Appeals, 9th District (Beaumont)
- **Decided:** August 31, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00214-CV
__________________

CHARLES G. RAWLS, Appellant

V.

WOODVILLE ISD, LISA MEYSEMBOURG, AND DONECE GREGORY,
Appellees

__________________________________________________________________

On Appeal from the 88th District Court
Tyler County, Texas
Trial Cause No. 26012
__________________________________________________________________

MEMORANDUM OPINION

In this accelerated appeal, appellant Charles G. Rawls complains the trial

court erred by granting Appellees’ Pleas to the Jurisdiction. According to Rawls,

there is sufficient evidence establishing that appellees Woodville ISD (“WISD”) and

Lisa Meysembourg, in her official capacity as Superintendent of WISD, and

Appellee Donece Gregory, in her official capacity as County Clerk of Tyler County,

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Texas, were proper parties to sue in this election contest and are not protected by

sovereign immunity. We affirm the trial court’s judgments.

BACKGROUND

Rawls filed Plaintiff’s/Contestant’s Original Election Contest against WISD,

Meysembourg, in her official capacity as Superintendent, and Gregory, in her

official capacity as County Clerk of Tyler, County, concerning WISD’s $47.85

million school bonds for 2022 (“the Proposition”) on the May 7, 2022 election ballot.

See Tex. Elec. Code Ann. §§ 233.001-.014. Rawls alleged he was a qualified voter

who owns property within WISD’s boundaries in Tyler County. The voters passed

the Proposition by twenty-nine votes, which included, among other things,

constructing a new elementary school, adding to the Career and Technical Education

Center at WISD High School, and levying a tax in payment thereof. Rawls alleged

that several voters claimed they were given incorrect ballots, and after obtaining a

list of the voters who approved the Proposition and maps from the Tyler County

Appraisal District defining WISD’s boundaries, he identified at least thirty

questionable votes and sixty to eighty votes on private roads not shown on the maps.

According to Rawls, WISD, Meysembourg, and Gregory oversaw and

administered the early voting, the May 7, 2022 election, and the May 16, 2022 ballot

canvass. Rawls alleged that while acting as County Clerk, Gregory intentionally,

recklessly, or negligently made inaccurate or false statements regarding the length

of time and manner to contest the election. Rawls sought a declaration from the trial
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court stating that the administration, conduct, and manner of the early voting and

election day voting for the Proposition was illegal and invalid as a matter of law.

WISD and Meysembourg, in her official capacity as Superintendent, filed a

Plea to the Jurisdiction, Special Exceptions, and Original Answer, explaining that

WISD is an independent school district governed by a seven-member Board of

Trustees, as well as a local government entity and a political subdivision of the State

of Texas. See Tex. Const. art. VIII; Tex. Educ. Code Ann. § 11.051. WISD and

Meysembourg explained that Meysembourg is not a member of WISD’s Board of

Trustees and has no authority to conduct elections, issue bonds, or adopt a tax rate.

See Tex. Educ. Code Ann. §§ 11.151, 11.152, 11.201. WISD and Meysembourg

argued the trial court lacked subject matter jurisdiction because Rawls sued the

wrong parties and should have sued the presiding officer of the Board of Trustees

who canvassed the election. According to WISD and Meysembourg, Texas Election

Code section 233.003 requires that a suit challenging an election concerning a ballot

measure be filed against the presiding officer of the final canvassing authority for

the contested election, and neither WISD nor Mysembourg have final canvassing

authority. See Tex. Elec. Code Ann. § 233.003.

WISD and Meysembourg argued that only the Board of Trustees has the

power and duty to conduct elections on behalf of WISD. See Tex. Educ. Code Ann.

§§ 11.1511(b)(12), 45.003. WISD and Meysembourg explained that WISD’s Board

of Trustees approved a Resolution Canvassing the Returns and Declaring the Results
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of a Bond Election, and the Order Canvassing the Returns was executed by the Board

President and attested by the Board Secretary. WISD and Meysembourg argued that

Rawls’s failure to serve the Board President is a jurisdictional bar to this election

contest, and that Rawls could not cure the jurisdictional defect because the time for

filing an election contest against the proper party has passed. See Tex. Elec. Code

Ann. § 233.006(b). WISD and Meysembourg also argued that Gregory, acting in her

capacity as an election official for the County, has no power or authority to canvass

school bond elections.

WISD and Meysembourg further argued that they are immune from suit. As

a government employee acting within the scope of her employment as

Superintendent, Meysembourg is immune from a suit challenging an election result.

See Kilgore Indep. Sch. Dist. v. Axberg, 535 S.W.3d 21, 29 (Tex. App.—Texarkana

2017, no pet.). WISD and Meysembourg argue that WISD is a Texas public school

district and state agency that is immune from suit and that its sovereign immunity

from suit is not waived under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.

Code Ann. §§ 101.021, 101.051. According to WISD and Meysembourg, they

should be dismissed from Rawls’s suit because they are entitled to governmental and

qualified immunity, respectively. See Bielamowicz v. Cedar Hill Indep. Sch. Dist.,

136 S.W.3d 718, 722 (Tex. App.—Dallas 2004, pet. denied).

Attached to WISD’s and Meysembourg’s Plea to the Jurisdiction is the

Resolution Canvassing the Returns and Declaring the Results of a Bond Election,
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which states “the Board hereby canvasses the returns of this election[]” and “has

duly canvassed such return,” and “finds and determines that Proposition A passed

the election[.]” A Resolution Canvassing the Returns and Declaring the Results of a

Bond Election was passed, adopted, and approved by the President of the Board of

Trustees of WISD, and attested by the Secretary of the Board of Trustees.

Gregory, in her official capacity as County Clerk of Tyler County, filed a Plea

to the Jurisdiction and Alternative Answer, Affirmative Defenses, and Special

Exceptions. In her Plea to the Jurisdiction, Gregory argued that Chapter 233 of the

Texas Election Code provides that qualified voters of a territory covered by an

election may contest the election only by suing the presiding officer of the authority

that ordered the contested election within thirty days after the date the election

records are publicly available, or the official result of the contested election is

determined. See Tex. Elec. Code Ann. §§ 233.002, 233.003(a)(1), 233.006(b).

Gregory explained the Tyler County Commissioner’s Court approved an agreement

with WISD permitting the use of its staff, facilities, and equipment to facilitate

WISD elections. According to Gregory, although that agreement allowed her to

assist the Board of Trustees in conducting elections, it was WISD’s duty to canvass

the election results, and neither she nor Tyler County has canvassing authority for

WISD’s elections.

Gregory argued that Jimmy Tucker, the President of WISD’s Board of

Trustees, was the presiding officer of the authority that ordered the contested
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election, and WISD’s Board of Trustees canvassed the election results. See id. §

233.003(a)(1). Gregory argued that neither she nor the County are proper parties to

Rawls’s election contest, and that Rawls failed to name Tucker as the proper party

in his lawsuit and failed to deliver a copy of his petition contesting the election to

the Secretary of State, as the Election Code requires. See id. §§ 233.003(a)(1),

233.006(c). According to Gregory, the trial court should dismiss Rawls’s action

against her in her official capacity with prejudice because he failed to allege facts

affirmatively establishing the trial court could exercise subject matter jurisdiction

over the lawsuit filed by Rawls.

Attached to her Plea to the Jurisdiction, is the Joint Election Agreement

Between the Woodville Independent School District and The County of Tyler,

Texas, and the Contract for Election Services WISD and Gregory in her capacity as

County Clerk, which both state that WISD is responsible for canvassing the election

results. Gregory also attached, among other documents, her affidavit; in it, Gregory

averred it is WISD’s duty to canvass the election results, WISD’s Board of Trustees

canvassed the election results for the bond election, and neither she nor Tyler County

have canvassing authority for the election.

In his response, Rawls also argued he satisfied section 233.003 of the Election

Code by suing WISD, which includes WISD’s Board of Trustees and each of its

members. See id. § 233.003(a)(1); see also Tex. Educ. Code Ann. § 11.151(a).

According to Rawls, section 233.033 allowed him to name either the presiding
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officer of the final canvassing authority for the contested election or the presiding

officer of the authority that ordered the election. Rawls argued that Meysembourg is

the presiding officer of the authority that ordered the election, and in her capacity as

Superintendent, she signed the Order calling for the election, subsequently held by

WISD. Rawls argued the trial court should deny WISD’s and Meysembourg’s Plea

to the Jurisdiction.

In addition to those arguments, Rawls added in responding to Gregory’s Plea

to the Jurisdiction that Gregory is not protected by sovereign immunity because she

acted without legal authority or because she failed to perform a ministerial act by

making inaccurate and false statements regarding the contested election. Rawls

argued he satisfied Election Code section 233.003 by suing WISD and

Meysembourg. And Rawls claimed that Gregory was a proper party to the litigation

because she contracted with WISD in her official capacity to provide election

services regarding the election, and he claimed Gregory was complicit with and a

part of the election irregularities and the negligent way in which it was conducted.

Rawls asked the trial court to deny Gregory’s Plea to the Jurisdiction.

Gregory filed a Reply to Plaintiff’s Response to her Plea to the Jurisdiction

and addressed Rawls’s allegation that she acted outside the bounds of her official

authority by intentionally, knowingly, or negligently making inaccurate statements

about the contested election. Gregory argued the Texas Tort Claims Act does not

waive immunity for intentional torts of a governmental employee, and she asserted
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that Texas courts have rejected attempts to overcome a jurisdictional bar based on

sovereign immunity based on an ultra vires exception when the plaintiff alleges the

defendant made a tortious misrepresentation. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.057; Hunnicutt v. City of Webster, 641 S.W.3d 584, 594–95 (Tex. App.—

Houston [14th Dist.] 2022, no pet.). Gregory argued the trial court should grant her

Plea to the Jurisdiction because Rawls failed to allege facts affirmatively

establishing the trial court has subject matter jurisdiction over the claims he asserted

against her in his suit. Gregory also argued that she is not a proper party to the suit.

WISD and Meysembourg also filed a Reply to Plaintiff’s Response in

Opposition to Defendants’ Plea to the Jurisdiction and Special Exceptions. WISD

and Meysembourg argued that WISD’s Board of Trustees, not Meysembourg, called

for the special election. WISD and Meysembourg further argued the presiding

officer of WISD’s governing body and entity that has canvassing authority is the

Board of Trustees, not the superintendent of the Board. According to WISD and

Meysembourg, since Rawls failed to comply with Election Code section 233.003,

the trial court could not exercise jurisdiction over the contested election. See Tex.

Elec. Code Ann. § 233.003(a)(1).

The trial court granted Gregory’s, WISD’s, and Meysembourg’s respective

Pleas to the Jurisdiction, and then dismissed the claims that Rawls filed against

Gregory, WISD, and Meysembourg with prejudice.

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ANALYSIS

In his sole issue on appeal, Rawls complains the trial court erred by granting

WISD’s, Meysembourg’s, and Gregory’s Pleas to the Jurisdiction. According to

Rawls, the evidence was sufficient to establish that they were proper parties to sue

in this election contest and not protected by sovereign immunity.

WISD’S AND MEYSEMBOURG’S PLEA TO THE JURISDICTION

Rawls argues that by suing WISD he also sued its governing body and each

of WISD’s Board of Trustees. See Tex. Educ. Code Ann. § 11.151(a). Rawls argues

that WISD is the authority that called for the election, as indicated by the January 3,

2022 Order. Rawls argues that Meysembourg, as Superintendent and the chief

executive officer of WISD, was the presiding authority of WISD, the person who

ordered the contested election, and the person who signed the January Order calling

for the election on behalf of WISD. See id. § 11.201(a)(1); Tex. Elec. Code Ann. §

233.003(a)(2). According to Rawls, Meysembourg is also the presiding officer of

the final canvassing authority for the contested election. See Tex. Elec. Code Ann. §

233.003(a)(1).

WISD and Meysembourg argue that the trial court never acquired jurisdiction

of Rawls’s election contest because he failed to comply with section 233.003 of the

Election Code and name the President of the Board of Trustees as the proper

contestee. According to WISD and Meysembourg, the law is clear that the presiding
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officer is the President of WISD’s Board of Trustees, which is the governing body

of the school district, and a school bond election may only be ordered by action of a

school board’s board of trustees. See id. § 3.004(b); Tex. Educ. Code Ann. §

11.061(c). WISD and Meysembourg argue that the authority to call an election to

issue school building bonds rests solely with the elected board of trustees. See Tex.

Educ. Code Ann. §§ 11.1511(b)(12), 45.003. WISD and Meysembourg further argue

that the evidence shows the Board of Trustees authorized the bond election, and it is

immaterial that Meysembourg signed the order authorizing the election. According

to WISD and Meysembourg, a suit against WISD is not a suit against the Board of

Trustees’ presiding officer, and Rawls’s failure to name the presiding officer

deprives the trial court of jurisdiction over Rawls’s suit.

GREGORY’S PLEA TO THE JURISDICTION

Rawls argues that Gregory, in her official capacity, is a responsible party to

this election contest because she was complicit in the alleged election irregularities

and the negligent manner in which the election was conducted. According to Rawls,

Gregory made inaccurate and false statements about the election contest that are ultra

vires acts, which Rawls argues defeat Gregory’s claim that the trial court does not

have jurisdiction over the claims he filed against her in the suit. Rawls argues that

Gregory is a party of interest in the election contest because WISD contracted with

Gregory for election services. Rawls further argues that his failure to deliver a copy

10
of his original election contest to the Texas Secretary of State does not deprive the

trial court of jurisdiction.

Gregory maintains that according to the plain language of Election Code

section 233.003, neither she nor Tyler County are proper parties to the suit Rawls

filed to contest the election because they did not order or canvass the contested

election, and she asserts that Rawls’s claims are barred by official and sovereign

immunity. See Tex. Elec. Code Ann. § 233.003(a). Gregory also argues that Rawls

cannot overcome immunity by alleging that she made tortious misrepresentations.

See Hunnicutt, 641 S.W.3d at 595.

STANDARD OF REVIEW AND APPLICABLE LAW

A plea to the jurisdiction challenges the trial court’s authority to determine

the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-

54 (Tex. 2000). Whether a trial court has subject matter jurisdiction is a question of

law we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004). We do not examine the merits of the plaintiff’s case, but only

consider the pleadings and evidence pertinent to the jurisdictional inquiry. Blue, 34

S.W.3d at 554. In reviewing a trial court’s jurisdictional ruling, we liberally construe

the pleadings in the plaintiff’s favor, look to the pleader’s intent, and accept factual

allegations as true. Miranda, 133 S.W.3d at 226. We indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Id. at 228.

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An independent school district is a political subdivision and an agency of the

state. Tex. Elec. Code Ann. § 1.005(13); Barr v. Bernhard, 562 S.W.2d 844, 846

(Tex. 1978). School districts are governed by a board of trustees, and it is the board

of trustees that has the exclusive power and duty to govern and oversee the

management of the public schools for the district. Tex. Educ. Code Ann. § 11.151(b);

San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex. 1996). The

board of trustees elects a president, who must be a member of the board, to serve as

the presiding officer. Tex. Educ. Code Ann. § 11.061(c)(1); see Geffert v. Yorktown

Indep. Sch. Dist., 290 S.W. 1083, 1085 (Tex. Comm’n App. 1927). The board of

trustees may employ by contract a superintendent, who is the educational leader and

chief executive officer of the school district. See Tex. Educ. Code Ann. § 11.201(a),

(b). The Texas Education Code provides that the trustees of an independent school

district constitute a body corporate that may sue or be sued. See id. § 11.151(a). As

the governing board of an independent school district, a board of trustees may issue

bonds and order an election, and a bond election must be called by resolution or

order of the governing board. See id. §§ 45.001(a)(1), 45.003; Tex. Elec. Code Ann.

§ 3.004(b). Except as otherwise provided by law, the precinct election returns for an

election ordered by an authority of a political subdivision, other than a county, shall

be canvassed by the political subdivision’s governing body. Tex. Elec. Code Ann. §

67.002(a)(2).

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“An election contest is a special proceeding created by the Legislature to

provide a remedy for elections tainted by fraud, illegality, or other irregularity.”

Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999) (citing De Shazo v. Webb, 113

S.W.2d 519, 524 (Tex. 1938)). Election contests are creatures of statute, and “the

power of a trial court to consider such contests exists on to the extent authorized by

statute.” Nichols v. Seei, 97 S.W.3d 882, 883 (Tex. App.—Dallas 2003, no pet.)

(citation omitted). The Texas Election Code vests the district court with exclusive

jurisdiction over an election contest. See Tex. Elec. Code Ann. § 221.002(a). Section

233.003 of the Texas Election Code provides in relevant part that the contestee must

be at least one of the following: (1) the presiding officer of the final canvassing

authority for the contested election; (2) the presiding officer of the authority that

ordered the contested election or the ordering authority, if ordered by an individual;

or (3) if the person specified by subdivision (1) or (2) is incapacitated or cannot act

for any other reason, another member of the specified authority. Id. § 233.003(a).

Strict compliance with the requirements of section 233.003 is necessary to invoke

the trial court’s jurisdiction. Mendez v. City of Amarillo, No. 07-07-0207-CV, 2008

WL 2582987, at *2 (Tex. App.—Amarillo June 30, 2008, no pet.) (mem. op.) (citing

Mercer v. Woods, 78 S.W. 15, 17 (1903)).

The evidence attached to the appellees’ pleas to the jurisdiction shows that

WISD’s Board of Trustees ordered the bond election. See Tex. Educ. Code Ann. §

45.003; Tex. Elec. Code Ann. § 3.004(b). The evidence also shows that WISD’s
13
Board of Trustees is the canvassing authority for the bond election. See Tex. Elec.

Code Ann. § 67.002(a)(2). Because Rawls’s suit named WISD, Meysembourg, and

Gregory as contestees instead of the presiding officer of the authority that ordered

the contested election or the presiding officer of the final canvassing authority for

the contested election (namely in both of the above circumstances the President of

WISD’s Board of Trustees), the evidence demonstrates that Rawls failed to comply

with the statutory prerequisite to filing an election contest suit. See id. § 233.003(a);

see also Mendez, 2008 WL 2582987, at *2. Since Rawls did not file suit against a

contestee, as required by section 233.003, we conclude the trial court did not err by

granting WISD’s, Meysembourg’s, and Gregory’s Pleas to the Jurisdiction. We

overrule Rawls’s sole issue on appeal and affirm the trial court’s judgments.

AFFIRMED.

________________________________
W. SCOTT GOLEMON
Chief Justice

Submitted on August 11, 2022
Opinion Delivered August 31, 2022

Before Golemon, C.J., Horton and Johnson, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7805884. Public record. Not legal advice.