Westheimer Independent School District v. Brockette

JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted. This writer has no argument with that portion of the majority opinion entitled “INJUNCTION PROHIBITING THE HEARING BEFORE THE COMMISSIONER” which holds that the administrative remedies concerning the validity of the ere- *792 ation of Westheimer Independent School District have been exhausted.

However,- this writer disagrees with that portion of the opinion entitled “REFORMATION OF THE INJUNCTION” in the strongest possible terms. The majority states that it is “not unmindful” of the judgment of the federal district court in Ross v. Houston Independent School District. 1 Neither should this court be unmindful that appeal might be made from the federal district court’s judgment with the ultimate result being wholly unknown. The federal district court did make certain findings, however, and among them was the determination that the “formation of WISD would be a major step towards the creation of a deteriorating central city” and that “[t]he formation of WISD and its continued existence have been motivated by and are still motivated by a demonstrated discriminatory purpose.”

The majority opinion in the instant case, coupled with a reversal of Ross v. Houston Independent School District, supra, by the Fifth Circuit Court of Appeals, would implement the results so graphically described by Federal District Judge Cowan. This court cannot blind itself to those results by asserting that the instant case presents nothing more than “the orderly disposition of cases of administrative law.”

The majority holds that Houston Independent School District may not challenge through judicial appeal the validity of the order creating Westheimer Independent School District because Houston I.S.D. has as a matter of law delayed in bringing such appeal for an unreasonable time. The majority asserts “[tjhere is ample authority for holding that the undisputed delay in this case is unreasonable as a matter of law.” This writer submits that (1) the majority opinion has no basis; it is altogether premature and unsupported; (2) all the authority, including each and every case cited by the majority, is to the contrary of the majority holding; and (3) Westheimer Independent School District brings no point of error before this court, and indeed makes no contention before this court, justifying or supporting the majority determination.

THE MAJORITY OPINION HAS NO BASIS — IS PREMATURE AND UNSUPPORTED

The majority has determined that the courts do not have jurisdiction to hear an appeal from the administrative order creating Westheimer I.S.D. because the parties have delayed their appeal for an unreasonable period of time as a matter of law. The majority holding has no basis; it is premature and unsupported for the elementary reason that this court does not have before it an appeal of the order creating West-heimer I.S.D What this court does have before it is the request that the court affirm or reverse a permanent injunction which is predicated solely on a determination that the administrative remedies have been exhausted.

In its simplest terms, the instant case was brought in the district court by Westheimer 1.5.D. to obtain an injunction prohibiting the Commissioner of Education, Houston 1.5.D., and Houston Teachers Association from conducting further hearings concerning the creation or existence of Westheimer 1.5.D. The district court issued a broad injunction prohibiting further administrative or judicial proceedings which would interfere with the operation of Westheimer I.S.D. The court of civil appeals reformed the injunction, narrowing its scope to the issues actually before the court and limiting its prohibition to administrative remedies only; by so doing, the court of civil appeals permitted a possible future appeal to the district court challenging the creation of Westheimer I.S.D. Such an appeal has not as yet been instituted. Accordingly, this court should only be considering the merits and scope of the injunctive order.

Any resolution of the jurisdictional questions that might arise if the order creating Westheimer I.S.D. were appealed is not only premature at this time, but also unsupported by the factual or legal development *793 of the instant cause of action. There is no appeal of the order creating Westheimer I.S.D. involved in the instant cause of action. No party pleaded the issue of validity or invalidity of the order creating West-heimer I.S.D. The petition of review, which was filed with the Commissioner by Houston I.S.D., was placed into evidence in the trial court by Westheimer I.S.D., not by Houston I.S.D. or other parties opposing the creation of Westheimer I.S.D. Although such petition of review alleges possible jurisdictional deficiencies in the creation of Westheimer I.S.D., the petition was utilized by Westheimer I.S.D. to show the nature of the jurisdiction being invoked by the Commissioner, not to show the accuracy of the allegations therein. Furthermore, the issue was not tried by consent as there was no development of the evidence to prove or disprove the question of validity. For example, no party introduced evidence to document the allegation in the petition of review that Katy I.S.D. had not been given notice or that territory in Katy I.S.D. was now included in Westheimer I.S.D. In addition to the general failure to plead or to prove elements concerning the validity of Westheimer I.S.D., the absence of the issue was established by the admissions of counsel and interested witnesses that the only ruling being sought in the trial court was the determination of whether administrative remedies had been exhausted. Therefore, a review of the pleadings, evidence, testimony, and arguments of counsel clearly demonstrates that this court is not presented with an appeal to the courts of an administrative order.

Accordingly, a determination that there has been an unreasonable delay as a matter of law in bringing an appeal is a judgment which goes beyond the matter in dispute in the trial court. Furthermore, the jurisdictional issue has not been raised in this court. None of the parties ask this court to rule the delay unreasonable as a matter of law; nor do they direct this court to any of the authority relied upon by the majority in ruling the delay unreasonable as a matter of law. Therefore, by ruling on the jurisdictional issue the majority has decided an issue not asserted by any party at any time during these proceedings. More significantly, the majority would proclaim such ruling to be dispositive of this case.

For the majority to so rule is to act prematurely and to overreach this court’s authority in the instant cause of action. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); Radcliff v. Clemons, 265 S.W.2d 182 (Tex.Civ.App.— Galveston 1954, writ ref’d n. r. e.), citing 4 McDonald, Texas Civil Practice § 17.27; Tex.R.Civ.P. 301. The resolution of this ■ jurisdictional question should only be resolved by a state court presented with the judicial appeal of the order creating West-heimer I.S.D. after development of all the necessary issues and evidence.

THE MAJORITY OPINION IS CONTRARY TO CONTROLLING AUTHORITY

Not only has the majority made a determination without basis and prematurely considered the issue of timely appeal from an administrative order, but in so doing it has determined the issue contrary to controlling authority, including those decisions upon which the majority relies. At the outset it must be noted that this is a case for which there is no timetable for appeal or limitation period applicable by statute. In such cases the courts have refrained from imposing arbitrary time limitations and have held that such cases will be governed by the more flexible standard which sanctions appeals prosecuted within a reasonable period of time. Nevertheless, the majority adheres to the rote application of time limitations and holds that the time element is the only factor to be considered in determining whether a delay to appeal an administrative order is unreasonable. The courts of this state, however, have consistently held that the time factor is only one of the elements to be considered in determining whether the delay was unreasonable.

The supreme court in Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417 , 179 S.W.2d 243 (1944), established the principle that in the absence of a specific timetable *794 for appeal, appeals from administrative orders must be brought within a reasonable time. The court in Midas held that a determination of whether a delay is reasonable or unreasonable depends upon the circumstances of the case and is a fact question to be resolved by the jury or the trier of fact. The Midas court specifically discussed the types of circumstances that the court deemed significant in determining the reasonableness of delay in appealing an administrative order: (1) the need for immediate action or implementation by the party relying upon the order; and (2) harm to the party relying upon the order caused by the delay in appeal. Basically these guidelines establish an estoppel theory whereby facts must exist which not only constitute a delay, but also demonstrate that the party relying upon the order would be harmed by the delay in appealing the administrative order. Humble Oil & Refining Co. v. Trapp, 194 S.W.2d 781 (Tex.Civ.App.—Austin 1946, writ ref’d).

Neither the holding nor the principles established in Midas have been overruled. Quite the contrary, Midas is consistently cited as controlling and its principles were followed explicitly by the courts in Board of Water Engineers v. Colorado River M.W. Dist., 152 Tex. 77 , 254 S.W.2d 369 (1953), Combs v. State, 526 S.W.2d 648 (Tex.Civ. App.—Austin 1976), cert. denied, 426 U.S. 922 , 96 S.Ct. 2629 , 49 L.Ed.2d 375 (1976), and Pan American Petroleum Corp. v. Railroad Commission, 335 S.W.2d 425 (Tex.Civ. App.—Austin 1960, writ ref’d n. r. e.). These are three of the very cases relied upon by the majority. These cases, as well as the courts in Railroad Commission v. Aluminum Company of America, 380 S.W.2d 599 (Tex.1964), and Red Arrow Freight L. v. Missouri-Pacific Fr. Transp. Co., 166 S.W.2d 747 (Tex.Civ.App. — Austin 1942, writ ref’d), have determined that a delay is unreasonable only after extensive development and consideration of all the attending facts.

As previously noted, there is no timetable for appeal or limitation period found in the statute or elsewhere which is applicable to the Commissioner of Education in this case. Nevertheless, the majority cites two cases which involve thirty-day limitation periods for appeal. Both Heaberlin v. Joaquin Independent School Dist. No. 38, 95 S.W.2d 1339 (Tex.Civ.App.—Beaumont 1936, no writ), and Bear v. Donna Independent School Dist., 85 S.W.2d 797 (Tex.Civ.App.— San Antonio 1935, writ dism’d), involved specific regulations of the superintendent of education which provide that an appeal should be brought within thirty days after the issuance of the order. It is one thing to say that a delay in appealing an administrative order is unreasonable as a matter of law when a specific thirty-day limitation period has been violated; it is another matter entirely to hold an appeal untimely as a matter of law when the uniform and consistent holding of the courts of this state, including this court, is that unreasonableness is determined as a matter of fact, by the trier of fact, and after all the facts are developed.

The majority has ruled that the delay in appealing is unreasonable as a matter of law without permitting the parties any opportunity to develop the fact questions concerning whether the order creating West-heimer I.S.D. was immediately relied upon and whether the delay to appeal would cause harm to Westheimer I.S.D. or the public. Indeed, the undeveloped record before this court raises fact questions concerning these issues which wholly preclude any ruling as a matter of law. It is to be recalled that Westheimer I.S.D. initially received a favorable ruling from the State Board of Education. Nevertheless, West-heimer I.S.D. was not in a position to act immediately upon receiving the ruling from the State Board of Education since it was faced with an injunction ordered by the federal court which prohibited the implementation of the order creating Westheimer I.S.D. for three years. It is noted, parenthetically, that Westheimer I.S.D. made no appeal from such injunction. As Westheimer I.S.D. was not and, of course, could not be operational during these three years, what possible harm was being suffered during this interim period? It is, at the very least, arguable that no additional harm would be suffered by the prosecuting of an *795 appeal after the injunction was lifted. These circumstances unquestionably present fact issues concerning the reasonableness of the delay which should be presented to a jury or a fact finder in order to determine whether Houston I.S.D. is barred from judicially appealing the order of the State Board of Education. In the instant case this court has before it very limited evidence produced at a hearing on a permanent injunction concerning administrative remedies. Such evidence is abbreviated and in no way develops those facts essential to a determination of the estoppel principles governing whether a delay to appeal is unreasonable. Therefore, the instant record is wholly inadequate for a fair determination of the jurisdictional issues which may arise if the order creating Westheimer I.S.D. is appealed to a state court.

THE MAJORITY OPINION IS UNRELATED TO WESTHEIMER I.S.D.’s POINTS OF ERROR

The majority has reversed the court of civil appeals on grounds which were not' asserted by any party in written briefs or urged by any party during oral argument. Westheimer I.S.D. is the party objecting to the reformation of the injunction which allows future judicial appeal of the order creating the School District. In its points of error concerning the reformation of the injunction, Westheimer I.S.D. alleges several theories of error; /. e., estoppel by judgment, res judicata, collateral attack, statute of limitations,- and compulsory counterclaim. However, at no point has Westheimer I.S.D. urged this court to rule the delay to appeal unreasonable as a matter of law, nor does Westheimer I.S.D. cite any of the authorities relied upon by the majority in so ruling. The majority, therefore, in straining to reach the result herein obtained has gone beyond the points of error urged by Westheimer I.S.D. and indeed beyond the scope of any contention made by Westheimer I.S.D. in its briefs or otherwise.

The majority maintains that its decision is based upon Westheimer I.S.D.’s unbriefed argument that there should be an end to litigation and upon the “strong public policy ■ favoring an end to litigation.” Each of these theories is meritorious when utilized in a cause of action which properly develops the issues and facts to support the application of such principles. Unfortunately, this court does not have before it such development of the instant case. Public interest and public policy are not static and readily definable, but are, as a rule, relative to the issues and interest developed in a controversy. The parties herein have not been afforded an opportunity to plead or prove the harm caused by the delay in appealing, nor has there been any proof that public interest demands that this delay be held unreasonable. On the contrary, when extensive evidence was presented to the federal district court there appeared to be adequate evidence that the public interest demanded that the formation of Westheimer I.S.D. be reviewed as it constituted a serious “socio-economic threat.”

Accordingly, this writer would affirm the judgment of the court of civil appeals which permits a possible future challenge to the validity of the creation of Westheimer I.S.D. in an appropriate state district court.

Justices STEAKLEY and DENTON, join in this dissent.

. Ross v. Houston Independent School District, Civil Action No. 10,444, - F.Supp. - in the U.S. District Court for the Southern District of Texas, Houston Division.