Toyah Independent School District v. Pecos-Barstow Consolidated Independent School District

OPINION

PRESLAR, Justice.

This was a suit brought by Appellants seeking to set aside an order whereby Ap-pellee, Reeves County Board of School Trustees, on August 13, 1971, annexed Appellant, Toyah Independent School District, to Appellee, Pecos-Barstow Consolidated Independent School District. Following trial to a jury, the District Court of Reeves County rendered judgment sustaining the order of annexation. We affirm.

Appellants contended that Don Wein-acht, a member of the Reeves County Board of School Trustees, had vacated his office on such Board by moving from the precinct from which he was elected. They cite Section 17.02, Texas Education Code, V.T.C.A., which provides that the county board shall be made up of five members, one of whom shall be elected from each of four commissioners precincts and one from the county at large; Section 17.05(2) of the Code then provides that “The four persons representing commissioners precincts must each reside in the precinct from which he is elected.” The annexation action of the County Board was taken on August 13, 1971, and the Court submitted an issue to the jury as to whether Wein-acht resided on that date in the precinct from which he was elected. The jury found that he did so reside.

Appellants’ points of error seventeen through twenty-one, inclusive, all relate to the actions of the Court and the finding of the jury in regard to this issue. We are of the opinion that any error in connection with the issue is immaterial for the reason that the issue was improper in the first instance. Weinacht was a duly elected and qualified member of the County Board, having been first appointed and then elected some three years prior to trial. His qualification to hold office could not be determined in this collateral proceeding. Article 6253, Vernon’s Ann.Tex.Civ.St., provides for the filing in the name of the State an information in the nature of a quo warranto, when:

“ . . . any person shall usurp, intrude into or unlawfully hold or execute, or is now intruded into, or now unlawfully holds or executes, any office or franchise, or any office in any corporation created by the authority of this State, or any public officer shall have done or suffered any act which by law works a forfeiture of his office,

Quo warranto is held to be the exclusive remedy afforded to the public by which it may protect itself against usurpation or unlawful occupancy of a public office by an illegal occupant. McFarlin v. State ex rel. Barnard, 272 S.W.2d 630 (Tex.Civ. App.—Waco 1954, ref'd n. r. e.) ; Hamman v. Hayes, 391 S.W.2d 73 (Tex.Civ.App.—Beaumont 1965, writ ref’d). In a school district enlargement case not unlike the one before us, this Court held that the authority of a de facto public official and his right to hold office may not be questioned in a collateral proceeding, but should properly be tested in quo warranto proceedings. Pyote Independent School District v. Estes, 390 S.W.2d 3 (Tex.Civ.App.1965, ref’d n. r. e.). In that case, as in the one before us, the plaintiffs sought to contest the combining of two school districts by the County Board of School Trustees on the grounds that the Board was illegally constituted because one of its members was not legally in office. The basis for the member’s disqualification was that he had not been properly elected. This Court said:

“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.”

We also said:

“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.”

And see Crain v. Adams, 120 S.W.2d 290 (Tex.Civ.App.—Amarillo 1938, n. w. h.), for other authorities and the statement that the rule announced in the Bowen case is so well established that further discussion of it is unnecessary. The points of error relating to this issue are also immaterial for the reason that the record reflects that the order of the County Board had sufficient affirmative votes to pass without the vote of Weinacht. Appellants’ points seventeen through twenty-one are overruled.

Appellants’ twenty-third point of error is that the Court erred in upholding the annexation order of August 13, 1971, because the act of the County Board was arbitrary and capricious. Point twenty-four is that such order is not based on substantial evidence.

While it is doubtful that point twenty-four is germane to any assignment of error in Appellants’ amended motion for new trial, it will be considered in connection with their point number twenty-three. We have reviewed all of the evidence in this regard and find the facts to be such that reasonable men in the honest exercise of their duty could have taken the action here questioned. The contention that they acted arbitrarily and capriciously is without support in the evidence. On the contrary, the action of the County Board is supported by substantial evidence. Pyote Independent School District v. Estes (supra) ; Rock Island Independent School District No. 907 v. County Board of School Trustees of Colorado County, Texas, 423 S.W.2d 665 (Tex.Civ.App.—Houston (14th Dist.) 1968, ref’d n. r. e.); Barnhart Independent School District v. Mertzon Independent School District, 464 S.W.2d 197 (Tex.Civ.App.—Austin 1971, ref’d n. r. e.); Neill v. Cook, 365 S.W.2d 824 (Tex.Civ.App.—Eastland 1963, ref’d n. r. e., 376 U.S. 202, 84 S.Ct. 698, 11 L.Ed.2d 650). In the last cited case and in the Pyote case, the facts closely parallel those of the case before us as to disparity between the schools in per student cost, subjects offered, number of students in daily attendance, and related factors. Such factors were held to constitute evidence, under the substantial evidence rule, to justify the annexation order of the County Boards, and we think the same is true here. The Toyah students had a choice of 19 subjects which were actually being taught during the 1971-72 school year, while the Pecos-Barstow District offered a choice of over 50 subjects, including band, vocational agriculture, two foreign languages, and other subjects not offered by Toyah; and costs per student were near $1,500.00 for Toyah and $629.00 for Pecos-Barstow. In ordering the annexation, the Trustees of the County Board were doing what they were authorized to do under Section 19.001, Texas Education Code, and their determination of what is needed and proper under the facts and circumstances being supported by substantial evidence, it should not be disturbed by the Courts. Appellants’ points of error numbered twenty-three and twenty-four are overruled.

Appellants’ other points of error, other than those enumerated, must be held to be waived as they were not raised in their Amended Motion for New Trial. Under the provisions of Rule 324, Texas Rules of Civil Procedure, the filing of a motion for new trial was a prerequisite for appeal in this case, and Rule 374, Texas Rules of Civil Procedure, provides:

“The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. * * * ”

Appellants filed a motion for new trial and followed it by an amended motion for new trial, but the points of error set forth in the amended motion relate only to the assignments of error which we have discussed above. Those assignments of error in this Court which were not brought to the attention of the trial Court in the amended motion for new trial must be considered as waived and not preserved for appellate review. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Cain v. Zurich Insurance Company, 426 S.W.2d 575 (Tex.Civ.App.—Dallas 1968, n. w. h.); Cox v. National Life and Accident Insurance Company, 420 S.W.2d 213 (Tex.Civ. App.—El Paso 1967, ref’d n. r. e.); Swafford v. Boyles, 437 S.W.2d 306 (Tex.Civ. App.—El Paso 1969, n. w. h.) ; Lopez v. Allee, 493 S.W.2d 330 (Tex.Civ.App.—San Antonio 1973, n. w. h.).

The judgment of the trial Court is affirmed.

RAMSEY, C. J., not sitting.