The opinion
DAVIS, Justice
(dissenting).
I dissent. This is an attempted appeal from a permanent injunction that was erroneously granted against the school teachers and the Board of Trustees of the High School of the Texarkana Independent School District. Seven minor students attempted to bring a “class action” for themselves and in behalf of 69 other minor students. The seven who brought the action did not have anything to do with the riot that occurred on the Texarkana Independent School District grounds and in the Student Center Building of the Senior High School. The riot was brought about by the white students and the black students because of forced integration. The trouble started at approximately 8:17 a. m. and continued until 8:40 a. m. when the police arrived. One of the teachers announced over the intercom system that the students should go to their classes. A large group of the students went to the eastern part of the school grounds. The students were cursing each other, making threats, using profane and obscene language. Fighting started, cars were damaged during the riot, and many locked doors in the school building were knocked open and broken out.
The doors of the school building were locked about 8:45 a. m. The classroom teachers were instructed to make a careful check and list all students who were absent from class during the first period. School was dismissed at 11:40 a. m. It seems that in the afternoon, the entire staff of high school teachers met to determine which of the students were absent or had been observed by any teacher or the principals of the school in the school building or on the grounds of the school that morning when *742 the riot began. The students who were not present in the first class period amounted to 212. When the 212 students came to the principal’s office to get their absence slips in order to be readmitted to school, they were told to assemble in the school auditorium. There the principal informed them that they were temporarily suspended from school and their parents would be notified by letter.
In order to shorten this dissent, I will say that an administrative hearing by the teachers commenced on February 22, 1971, after each student had been given notice thereof, and was concluded on February 25, 1971. As a result of the administrative hearing, 54 minor students were readmitted to school. One hundred ten of the minor students were expelled for the remainder of the semester. Forty-seven of the minor students did not appear at the administrative hearing nor apply for readmission to school.
On February 25, 1971, the Superintendent of the school mailed to the parents of the 110 students who were expelled a letter to that effect. Each parent was given an opportunity to appear before the Board of Trustees with his child. They were given an opportunity to produce any pertinent information by calling the superintendent’s office and having their names placed on the list.
On February 26, 1971, the Board of Trustees started its administrative hearings. They were concluded on February 28, 1971. At these hearings, the parents and the minor students were allowed to give any information they desired. Some of the minor students made a memorandum in writing at the administrative hearing. It was read to the parents and to the minor students in the presence of the Board of Trustees. Some of the students had written letters describing their activities in their own words. They were also read to the Board of Trustees. No witnesses were heard by the Board of Trustees other than in the presence of the students, their parents, the teachers, and the Board of Trustees. Approximately 94 students appeared. The Board of Trustees reinstated 18 students. They expelled 76 students.
On March 4, 1971, this suit was filed, in which a Temporary Restraining Order was sought by 7 minor plaintiffs involved, as a “Class Action” to prevent seventy-six minor students from being expelled from school.
The minor plaintiffs alleged in Paragraph 2 of their Original Petition as follows :
“Plaintiffs bring this action on their own behalf and on behalf of the other individuals similarly situated, because the group of students subjected to or threatened with suspension or expulsion in violation of their constitutional rights is so numerous that joinder of all members is impracticable, and questions of fact and law exist in common to the class. The constitutional claims of the plaintiffs are typical of the claims of the class. The representative parties will fairly and adequately protect the interest of all Texas High School students. The prosecution of separate actions by individual students would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the defendants.” (Emphasis added).
These allegations are wholly untrue because there were different questions of fact and questions of law that, existed among the several minor students. They further alleged that it was brought as a “Class Action” under Rule 42 T.R.C.P., under the 14th Amendment of the Federal Constitution, under the 1st Amendment of the Federal Constitution, and under Sec. 21:301 of the Texas Education Code. In Appellees’ behalf, it is argued most fully that Rule 23 of Federal Rules of Civil Procedure was applicable to class actions by or against minors or infants.
First, let us examine the transcript as a whole. It was presented to a visiting *743 Judge who signed a Temporary Restraining Order on March 5, 1971, at 3:20 o’clock p. m. In the Temporary Restraining Order he did not set a date, time of day or a place for a hearing on the Application for a Temporary Injunction. That part of the Temporary Restraining Order which is supposed to set a hearing date, time of day and place for the Application for Temporary Injunction reads as follows:
“It is further ordered that Plaintiffs’ application for a temporary injunction effective until final decree herein, as contained in his verified petition, be heard before me at_o’clock on the _ day of -, 1971, in the District Courtroom in the Court House of Bowie County, in the City of Boston, Texas.”
On March 22, 1971, another visiting Judge signed and entered the following Order:
“ORDER EXTENDING TEMPORARY RESTRAINING ORDER AND RESETTING HEARING
“On this the 22nd day of March, 1971, the above entitled numbered cause came on for hearing on Plaintiffs Application for Temporary Injunction pursuant to the Order of the Judge made herein on the 2nd day of March, 1971, and it being impossible to consider said application for the reason that the Court is engaged in another matter and it is therefore ORDERED that the hearing on Plaintiffs said Application for Temporary Injunction is hereby continued to and reset for the 1st day of April, 1971, at 10:00 o’clock a. m. in the County Building of Bowie County, Texas, in the City of Texarkana, Texas, and that the temporary restraining order heretofore issued in this cause be and the same is hereby continued in full force and effect until said time.
“This the 22nd day of March, 1971, at 9 o’clock a. m.” (Emp. added).
On March 23, 1971, Appellants filed a Special Exception to Paragraph 4 of the Plaintiffs’ Original Petition for the reason that the same alleged an inquiry as to a matter of fact, to-wit: “the sufficiency of the evidence against the plaintiffs, and the plaintiffs have failed to pursue their administrative remedies by appealing to the State Board of Education to determine the sufficiency of the evidence against them as to the charge.” There is no showing that this special exception was ever acted upon. If so, this writer thinks it should have been sustained. In an administrative hearing, you have to pursue these routes before you are permitted to enter a court.
On March 23 and 24, 1971, this case was tried by another visiting Judge on the theory of a permanent injunction. In the Judgment that was signed and entered, it is stated that on March 3, 1971, a Temporary Restraining Order was entered and a hearing on the Application for Temporary Injunction was set for March 12, 1971. No such Order appears in the record. The Judgment further says that on March 12, 1971, the Temporary Restraining Order was continued and a hearing on the Temporary Injunction was reset for March 22, 1971. No such Order appears in the record. The Judgment further says that on March 19, 1971, the Temporary Restraining Order was continued, and hearing on the Application for Temporary Injunction was set for a “later date.” No such date is listed. The Judgment further says that on March 22, 1971, the case was set for trial on its merits and the Application for a Permanent Injunction beginning on March 23, 1971. No such Order appears in the record. Anyway, the visiting Judge signed and entered an Order granting the Permanent Injunction on May 25, 1971. From that Judgment, Appellants have perfected their appeal. They bring forward four points of error.
Under the record in this case, this writer does not feel that the District Court ever acquired jurisdiction to grant a Temporary *744 Restraining Order, Temporary Injunction or a Permanent Injunction. A Temporary Restraining Order must fix a date, place, and hour to hear an Application for a Temporary Injunction. This the trial Judge did not do. We are bound by what the record reveals. Appellees base their suit solely upon the theory of “due process of law,” and a “class action” on behalf of a group of minors.
Hundreds of decisions have been written upon the question of “due process of law” in civil suits, administrative proceedings, and criminal cases. 13A Words and Phrases 159 to 376. A careful examination of those cases will show that many Trial Judges and administrative proceedings were not held according to the “due process of law.”
“Due process of law” is described in the dictionary as: “A limitation of the U.S. Federal and State Constitutions that restrains the actions of the instrumentalities of government within limitations of fairness.” This, as I see it, is an extremely broad definition. How would an administrative officer or body of officers be able to understand the “due processes of law” as guaranteed by the 1st and 14th Amendments of the Federal Constitution when the officer or body of officers are not lawyers. There are many, many definitions handed down by many appellate courts as to what constitutes actual “due process of law.” The definitions go all the way from barbering, beauty culture, brokers, cattle, child support, colleges, Universities, public schools, common law, competent counsel, competent tribunal required in condemnation proceedings, and many, many others. I have carefully searched the U.S. Constitution, all the Federal Statutes and the Federal Rules of Civil Procedure, and I cannot find anything in them that will permit a “class action” to be brought for or on behalf of minor plaintiffs or against minor defendants.
Federal Rules of Civil Procedure, 17(c), reads as follows:
“(c) Infants or Incompetent Persons: Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad li-tem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. (Emp. added).
There is not one single word, phrase or sentence in Rule 23 of the Federal Rules of Civil Procedure that permits “class actions” to be brought by or against a group of minors. For the benefit of the public, I will copy Rule 23 of the Federal Rules of Civil Procedure:
“Rule 23. Class Actions
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members *745 of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to indi- * vidual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.
(1)As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
(2) In any class action maintained under subdivision (b) (3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action under subdivision (b) (1) or (b) (2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b) 3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c) (2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the *746 court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.”
I have examined the Texas Constitution, Texas Statutes, and Rules of Civil Procedure. I cannot find any Constitutional Provision, any Statute or any Rule of Civil Procedure that will permit a “class action” by or against a group of minor plaintiffs or minor defendants. Article S, Section 8, of the Texas Constitution, Vernon’s Ann.St., gives to the District Courts jurisdiction and general control in probate matters over the County Court, appointed guardians, granting Letters Testamentary and of Administration, Probating Wills or Settling the Accounts of Executors, Administrators, and Guardians, and for the transaction of all business appertaining to estates; and ORIGINAL JURISDICTION AND GENERAL CONTROL OF EXECUTORS, ADMINISTRATORS, GUARDIANS, AND MINORS UNDER SUCH REGULATION AS MAY BE PRESCRIBED BY LAW. Of course, this has to do with civil matters. The “Interpretative Commentary” immediately following this Constitutional Amendment is very instructive. The cases cited thereunder are extremely positive.
Article 1994, Vernon’s Annotated Texas Civil Statutes, provides for a suit and representation by a next friend for minors, lunatics, idiots and persons non compos men-tis. The historical note thereunder is very enlightening. If a “class action” can be brought by or against a group of minors, a “class action” can likewise be brought by lunatics, idiots, and persons non compos mentis. If such “class actions” are permitted by minors and our courts should follow the “Rule of Stare Decisis,” our country would be without any jurisdictional system whatever for our legal protection. The cases cited under this Article are positive, interesting and most informative.
There are cases that hold that a Judgment in an action by the next friend of a minor may be set aside as being void for several reasons. In actions against a minor, or minors, many judgments are void for several reasons. 43 C.J.S. Infants § 122, p. 339.
“Class Actions” were first brought in federal courts under the rules of equity. 30-A C.J.S. Equity Chapter “H. Rules in Federal Court.” § 164 on page 155, states how class or representative suits, where one or more parties are permitted to sue or defend for all members of the class, were expressly authorized when the question was one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court. Under Rule 23, Federal Rules of Civil Procedure, such suits are classified as “Class Actions.” Of course, objections for misjoinder or nonjoinder of parties might be made by Motion or Answer. The Federal District Court still has the power to appoint guardians ad litem, and he must see that justice is done in the minor’s behalf. 30-A C.J.S. Equity § 355, p. 375.
“Class Actions” in Texas have long been recognized by Courts in equity between adult persons. There is nothing said about *747 any “class actions” by or against minors. 22 Tex.Jur.2d 563, Sec. 21; and 32 Tex.Jur.2d 568, Sec. 26.
All fifty states may enact statutes that will grant special privileges under the equal protection clause of the 14th Amendment of the Federal Constitution, and Federal Rule 23, Federal Rules of Civil Procedure, which permits “Class Actions” by or against adults. 82 C.J.S. Statutes § 159, p. 266. No Constitutional Amendment, Statute or Rules of Civil Procedure can be enacted but what it will work to the detriment of one or more individuals. The General rule of construction that all statutes in pari materia are to be construed together, but that statutes not in pari ma-teria need not be construed together has been applied by numerous particular statutes. 82 C.J.S. Statutes § 366 C, p. 814.
This section points out that when it is necessary to ascertain the meaning of an ambiguous provision of a statute, the Court may consider other related statutes in connection with the construction of statutes concerning descent and distribution, divorce, dower, homestead, education, and, likewise, in connection with construction of statutes concerning elections. In the construction of statutes relating to infants, see 82 C.J.S. Statutes § 366-C, Note 29, p. 820.
There is only one way that a suit can be brought in behalf of a minor, or minors, lunatics, idiots, or non compos mentis persons, and that is by a legal guardian or a next friend. The only way a suit can be brought against a minor, or minors, lunatics, idiots, or non compos mentis persons, is to bring an action against them, serve them with a citation, make a motion to the District Court to require the District Judge to appoint a guardian ad litem (which the District Judge must do) before any Judgment can be taken against the minor, or other persons. Any Judgment taken against a minor or other person without this process and positive proof against the minor, or other person, is void.
Much has been written about “Due Process of Law” in the last few years. Charles Allen Wright wrote an Article in Vanderbilt Law Review, Vol. 22, beginning at page 1027, on the question of “The Constitution on the Campus.” This article is interesting indeed. He does not mention any cases that were ever brought by minor plaintiffs or minor defendants either singly or as a “class action.”
42 Amer.Jur.2d, beginning on Page 1, and ending on Page 199, regarding “infants” is most interesting indeed.
Article 295a, VATPC, which defines disruptive activities on campus or on property of educational institutions, does not give any minor a lawful right to violate the law or to do anything that will interfere with the rights of others. Apparently, we are going through a “generation gap,” wherein less than one per cent of the minors think that riots, demonstrations, disruptive activities, cursing, using profane language, fights, destroying private property, destroying public property paid for by the taxpayers, rebellion, disturbing the peace, smut, pot, drugs, dope, hate, crime, whiskey, beer, sex, rape, murder, obscene pictures, long hair, large sideburns, whiskers, mustaches, hippies and hot-pants are a part of their way of life, regardless of what other American minors and adults think of such thoughts and activities.
Then, television, radio, and the newspapers always give this group of minors outstanding and special publicity as if this minor group of students represented the majority of all the citizens of America. To me, that is the worst thing that is happening to the American school system today. The teaching of moral principles and obedience always begins in the home. I have always thought that the public school was nothing more than a second home where such teachings were to be carried out. I still think so, regardless of what the many appellate courts say about “due process of law.”
I think the churches are another place where the moral thinking and principles of obedience are taught.
*748 Every spring I receive many invitations from seniors who have graduated from high school. I always write them a letter and tell them that their future depends upon their “adherence to the Teachings of the Gospel.” I further tell them that: “They cannot find a peace of mind except from a God-Governed Conscience.” I have a lot of faith in the majority of the youth of today in our country. I recently wrote a letter to a teenage girl in college in which I expressed my hope for the future, that the youth of today would rule our country tomorrow. In her reply, she said: “It is nice to know that there are still those in your generation who have not lost faith in my generation. Your letter is very thought provoking, and I appreciate your thoughts.” (Emily Russell, Southern Methodist University, Dallas, Texas).
We are definitely getting away from the old principle of “Spare the rod and spoil the child.”
I know a retired schoolteacher who has always lived in Upshur County, Texas. He has always been looked up to by everyone who knew him as an outstanding schoolteacher, excellent in every way. He always did an excellent job in the business world. He is now working for a bank in Gilmer, Texas. His name is D. T. Loyd. Since he quit teaching school, he wrote a History of Upshur County. He now writes a little history which is published in the weekly newspaper each week. Recently, he wrote a little history about school teaching. It reads as follows:
“EARLY DAY TEACHING — Soon after the beginning of this century the trustees in a rural school not far from Gilmer employed a young teacher for their school. There were about IS boys who were mischievous rather than just mean, attending this school, so that along about Christmas the teacher could not stand it any longer and resigned. The boys in this school had a reputation of 'running the teacher off’ so the school board talked to a man about 6 feet tall and weighed about 175 pounds and told him the situation, so he took the job. This new teacher came to school the first morning and announced that all of the students might not be there until the end of school, but he would, and in his coat pocket he had a razor strap with both ends sticking out. A few of the boys dropped out of school, but the teacher remained there to the end and never did have to use the razor strap.”
I have every confidence in this man. He could do a much better job in teaching the moral principles of life to a minor than any judge who ever wrote on the subject of “due process of law.”
Now, the Texas Legislature has enacted an “Educational Code” in which they included “Sub-Chapter 1. Discipline, Law, and Order.” It seems that they took all of the authority away from teachers to discipline children and left it up to the Board of Trustees. They even put it in the Statutes that the Board of Trustees could call upon the Governor for help in times of riots and in order to maintain law, peace and obedience of any and all moral principles. It says that the Governor may use the Department of Public Safety, but he cannot call upon the Texas National Guard nor any other military force to control the operations of the schools. It also gives the Attorney General the right to assist the Public School Board of Trustees should the Constitutionality of this Act be challenged in the Federal Court. Still, it doesn’t authorize a “class action” by or against any minors in a civil suit.
Marwin B. Brakebill wrote an article on “Suspension of Students Pending Disciplinary Actions” in the Texas Tech Law Review, Vol. 2, beginning on Page 271 and ending on Page 279. He concluded this article with the following two paragraphs:
“In the long rugged road from the concept of in loco parentis (in the place of a parent) to the Dixon recognition of a student’s constitutionally-protected ‘interest’ in acquiring an education, much stress has been placed on the procedural *749 aspects of university disciplinary proceedings. In balancing the respective, and, at times competing interest of the university and the student, not only legal but sociological factors begin to emerge to cloud the traditional relationships involved.
“In its simplest terms, a university cannot function without authority or survive amidst chaos. To fulfill its role as an educational institution, discipline is a necessity. On the other hand, a student cannot be relegated to the status of a mere number or be subjected to the whims of an administrative official. Dixon has set forth a basic accomodation of these interests in the disciplinary area by extending procedural due process, in a watered-down form, to university disciplinary proceeding. The boundaries of that extension are ill-defined. Beyond the requirement of notice and some opportunity for a hearing, uncertainty abounds. Mere technical adherence to these two requirements will not fully protect a student’s interest in situations where he may be suspended before being heard on a charge of misconduct. In the absence of extreme circumstances, a student should be entitled to the status quo until his side has been effectively presented and fairly heard.”
Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Circuit), Cert. Denied, 368 U.S. 930 [ 82 S.Ct. 368 , 7 L. Ed.2d 193 ] (1961).
I do not believe that a careful examination of the cases cited in the original opinion and the concurring opinion actually say anything about a “class action” being brought in behalf of a number of minor students or against a number of minor students as a “class action.” I urge a careful study of the cases and the law. It seems the minors are represented by a next friend, guardian, or guardian ad litem. If they were not so represented, the judgments and opinions are at least voidable, if not absolutely void.
In this case, there were extreme circumstances. One or more of the students had threatened to kill one of the teachers. It was one of the worst outbreaks of violence that ever occurred on a high school ground or in a high school building. Then, the teachers and the Board of Trustees gave to the students more than they deserved in two Administrative Hearings.
We do not have any Teachers or Board of Trustees living today, except a very few indeed, who would do anything evil or unjust to minor children. If I were a schoolteacher, or a Member of a Board of Trustees, and were forced to write bylaws, rules and regulations for any school, I would try to express the thoughts that are set forth hereinabove. I would make it very plain that any student who misbehaved in any way would be expelled from school. If it were a minor offense, he would be expelled for five days. If he were guilty of a second offense he would be expelled for the rest of the term. If he were guilty of violating the criminal laws, I would try to take appropriate action against the student in the criminal court. And, if the offense were of such a grade as those that were incurred in this case, I would expel them for the rest of the term.
A minor has no outright opportunities unless they are granted to him by the Federal Constitution, Federal Statutes, or Federal Rules of Civil Procedure; or by a State Constitution, State Statutes, or State Rules of Civil Procedure. No such rights occur in this lawsuit.
Very recently, the Congress of the United States enacted a Constitutional amendment that would give minors 18 years of age or above the right to vote. Texas has just recently adopted such a Constitutional Amendment. This right does not give the minors any rights to sit on juries, make any contracts that are enforceable, or do anything else. The only right that they acquire was the right to vote.
Under Texas law, a minor who has reached the age of 18 years may have his *750 disabilities of minority removed. Article 5921, VATCS. Also, under a Texas Statute, the parents of minors who do any malicious or willful damages to any property or destroy the same, the parents are civilly liable therefor. Article 5923-1 VATCS.
Under the Texas Statutes a boy who is under 19 years of age and a girl who is under 18 years of age can not get married without the written consent of a parent or their legal guardian. Sec. 1.52 V.T.C.A., Vernon’s Annotated Texas Family Code. Otherwise, they must have the written consent of a parent or guardian.
At the time the riot started, there were approximately 6,700 students attending the Texarkana Independent School District. Of this number, there were about 1,650 students attending the high school. Yet, at most, there were only about 212 (such a small minority) who caused all the trouble. As I see it, many of these minors violated the criminal laws of the State of Texas, and were subject to prosecution. Yet, the teachers and the Board of Trustees, in a desperate effort to try to get along, took no criminal action against either of them.
This Court is bound by the record as it is presented for review. The record clearly shows that the minor students who were expelled from school for the rest of the semester had a right to immediately appeal to the State Board of Public Education to have their cases reviewed. This is a requirement, and they must receive an adverse ruling there before they could enter the District Court. Then, it would have to be brought by or on behalf of each minor; not as a “class action.” Such is true when a minor student applies for a transfer from one school district to another. They must appeal to the State Board of Education. I personally know of one such case, and the State Board of Education ruled in favor of the students. This rule also applies to a schoolteacher in the event one or more of them are expelled or fired. They must first appeal to the State Board of Education. If the State Board of Education should rule against either of them, then they may enter the District Court and try to convince the Court that the teacher, or teachers, are in the right. This has to be done before they can plead mistreatment because of lack of “due process of law.” The same rule of procedure applies to City Firemen and City Policemen. If one or more of them are expelled or fired, they must immediately file an appeal with the Civil Service Commission. If the Civil Service Commission should rule against one or more of them, then they have a right to enter the District Court to try to allege and prove that they have been unlawfully expelled or fired.
Bearing in mind that not any of the parents, nor the minors, appealed their suspension to the State Board of Education after the administrative hearings, which the parents were required to do, Plaintiffs and “class plaintiffs” prayed for relief as set out in their original Complaint as follows:
“WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that upon the filing of this Complaint with this Court that the following equitable relief for the aforementioned reasons be granted:
“(a) That without notice and hearing the Court issue a temporary restraining order immediately restraining and enjoining the School Board of Texarkana Independent School District, and other defendants, or any of the agents or employees of the Texarkana Independent School District from interfering with or refusing to permit class attendance by plaintiffs and all others similarly situated;
“(b) That the Defendants be temporarily and permanently enjoined from preventing plaintiffs and class plaintiffs from attending Texarkana, Texas High School, unless and until Defendant School Board complies with all of the requirements for a proper hearing in accordance with administrative due process.
“(c) That the rules adopted by the Defendant School Board as pertaining to *751 suspensions be temporarily and permanently enjoined from enforcement by defendant on the grounds that such rules are overly broad and vague, denies constitutionally protected rights of free speech and freedom of assembly, and is discriminatorily and improperly applied.
“(d) That the Defendants be temporarily and permanently enjoined and restrained from withholding from Plaintiffs or class plaintiffs any of the rights and privileges of a student at Texar-kana, Texas High School, including but not limited to the right and privilege of attending class and full participation in all school activities.
“(e) That Plaintiffs and class plaintiffs be afforded such other and further relief as this Court may deem proper.” (Emp. added)
Therefore, as I view the record, the District Court did not acquire jurisdiction to grant the temporary restraining order; and, definitely no power to grant the permanent injunction. I think a fundamental error is clearly shown.
I would set the judgment of the District Court aside and dismiss the case for want of jurisdiction.