Edgewood Independent School District v. Kirby

noneconomic, any action for as quarrel

human loss. dissent’s real is SCHOOL EDGEWOOD INDEPENDENT single particular DISTRICT, not with case or this et al. action; cause of it is with the substantial

body governing of common law tort KIRBY, N. et al. William developed past that over years, just twenty last one-hundred D-0378. No. suggested by Justice Hecht. Court of Supreme Texas. view stems from their dissenters’ suspicion concept and distrust of 22, 1991. Jan. Texans, ordinary constituting cross-sec- 27, 1991. Rehearing Overruled Feb. communities,

tion of their individual assem- bling jury as a make difficult determina- concerning

tions of noneco- measure tragically

nomic loss that sometimes be- family. professed empathy

falls a Their is by epithets “jackpot”

belied like and “lot-

tery-like” they apply jury to favorable family

findings Supra members. suggestion that one award returned

by a jury, supra Massachusetts at 486 n. jury demonstrates weakness

system misleading. is Juries at times

reach verdicts others term either out-

rageously paltry. excessive or Like endeavor, authoring judicial

human even

opinions, errors are But inevitable. dero-

gating jury system does solve the

problem; merely judg- substitutes legal experts regarding

ment of factual panel

issues for of a expert of citizens range experience. prefer of human I respect jury decisions as the voice of the recognize

community appellate to check egregious

courts exist abuses. joined

That Justice Hecht in full justice, large part by

one other and in

another, ill jurisprudence. bodes ‍​​​​‌‌​​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌‌‌​​​​‌​​​‌​​​‌​‌​‍for Texas objective steadily

Their real to erode the ordinary

role jurors citizens in our

system justice deny and to Texans im-

portant rights. J.,

MAUZY, joins concurring

dissenting opinion. Richards, Austin, E. Richard

David R. III, Kauffman, Anto- Gray, Albert H. San Mass., nio, Rice, Somerville, Norma Roger Kauffman, Cantu, H. Antonia V. Albert Luna, Hernandez, Anto- Guadalupe T. San nio, Hall, Weslaco, petitioners. David Luna, Dallas, Luna, Jerry Earl Robert E. Scott, Lynn Roger Rossi L. Hoodenpyle, O’Hanlon, Hurlbut, Arlington, Kevin T. Austin, Keller, respondents. Mary F. OPINION PHILLIPS, Chief Justice. held in this case previously

We have system vio- school finance the state VII, order en- lates article remained unconstitutional injunction (“Edgewood forcing Constitution. 777 S.W.2d 391 affirmed I”). whether lengthy Now we decide this violation Court in I. After following enactment of Bill hearing, remains Senate the district court found that de- 1, by Legislature.1 changes the that it in Bill spite 71st We hold the Senate the does. system remained unconstitu- school finance Nevertheless, the court va-

tional. district injunction cated and our denied I injunctive relief or enforcement May This action commenced in Court’s The district court stated mandate. when numerous school districts and individ- judgment its that it would not entertain sought judicial uals declaration that the requests further relief it became until public system finance un- state school was apparent Legislature that the would not constitutional. After trial on the merits adopt funding sys- a constitutional school 1987, sys- the district court found that the implemented beginning Septem- tem to be tem violated the Texas Constitution in sev- ber 1991. respects enjoined eral the September 1, 1989, funding it after unless now Plaintiffs seek relief from this Legislature repaired the constitutional arguing judgment, that substance defects appeals that date. court of authority by district court exceeded its va reversed the district judgment court’s cating injunction postpon this Court’s December 1988. 761 S.W.2d Oc- 859. On ing injunctive consideration of further re 2, 1989, tober this Court in Edgewood I lief. state Defendant officials also com judgment ap- reversed the the court plain by cross-appeal that the district court peals injunction reinstated issued finding erred in the school finance court, postponed district but ef- system continues to violate the Constitu 1,May date, fect until 1990. On that state tion after enactment of Bill 1. Senate De funding schools was un- to cease fendant-intervenor school districts chal less Legislature conformed the lenge jurisdiction the Court’s to consider to the requirements of the Constitution. any of these contentions.4 777 S.W.2d 391. The district May court extended the II Legislature deadline2 to allow com- plete its work on what became Bill Senate At the we outset must determine wheth- 1, which signed the Governor into June jurisdiction law er our properly has been in- law, Plaintiffs, 1990.3 Once Bill Senate plaintiff-intervenors became voked. plaintiffs returned district defendant state officials all assert seeking both a declaration that system they appeal are entitled to the district 7, 1990, C.S., 2, 1990, Leg., 1. Act began of June 71st May 6th ch. a school finance bill was passed Legislature Tex.Gen. Laws 1. by both houses of the but May vetoed Governor on 1990. parties complain 2. did not this Court Leg., Tex.S.B. 71st 5th C.S. 145 Tex., SJ. 1,May the district court's extension of our during Bill Senate 1 was enacted deadline, ap- should and we not be viewed special sixth session. proving this action. complain 3. We noted also when issued our 4. Plaintiffs district court Edgewood refusing I that the erred in Governor had called the award them the entire special beginning attorney requested. into session No- amount fees This com nothing plaint vember 1989. 777 S.W.2d at 399 n. to do with the enforcement funding system Moreover, was not in the included of our mandate. record be call, however, us, special until the third session fore issue is not one over which we will Legislature, began February appeal jurisdiction. which exercise direct See Tex.R. adjourned 140(b). That adopting session appeal without corrеc- Plaintiffs’ App.P. on issue is session, dismissed, legislation, tive special did the prejudice fourth therefore ing without seek immediately adjourned which appeals followed and on review in court of in accordance 1,May session, 140(e). special appellate 1990. At the fifth rules. See Tex.R.App.P. compel its en- Court, necessary, can this Court directly to this judgment court’s at 332. forcement.” 405 S.W.2d V, upon section 3-b based article 22.001(c) of the and section Constitution5 court concluded as The district Defendant-intervenors Code.6 Government Bill 1 does not matter of law that Senate judgment court’s counter that the district system con change school finance appeal is a direct is not one from which and thus that demned constitutional and stat- authorized these not met its constitutional Legislature had pass on utory provisions. We need regard, the district obligations. In this conclude that contentions because we these since change in conditions court found no properly us for other parties are before vacated The district court Edgewood I. however, reasons. equitable injunction, Legislature grounds of defеrence to in By judgment Edgewood our disruption public edu and avoidance by originally issued the dis injunction are equitable These considerations cation. modified this court and affirmed as trict They have been changed conditions. not an order of both this Court Court became litigation, and this present throughout this State v. Walk and the district court. See in Edge- mindful of them fully Court (Tex.1984); er, City Court, 485 679 S.W.2d not the courts Only I. this wood Ry., below, policy 405 reasons Tyler may v. Louis Southwestern decide that for St. (Tex.1966). the district or vacated. As mandate should be modified our obliged Conley, to observe 164 S.W. at 986. recognized, court it was in judgment as rendered and enforce our to enforce request this Court Plaintiffs changed conditions. Id. It absence power its mandate. We have in first in for us to ascertain is not upon duty to enforce our mandate but the changed have stance whether conditions party if we determine request of a I; must that determination since improperly. court acted See the district court, which can made the district be Wells, therefore Tex. at 30-31. We evidence, subpoena witnesses hear being in the nature proceeding treat this court’s findings. The district make Id. proceeding to di- original an mandamus appeal. Id. is reviewable on decision in- to reinstate our rect the district court However, power to en we also have If matter of law the district junction. ‍​​​​‌‌​​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌‌‌​​​​‌​​​‌​​​‌​‌​‍as a by mandamus if we can force our mandate determination that was correct its determine, resolving factual dis without in the school violation the constitutional changed Edge- putes, system that conditions have which we found finance continues, clearly its discre then it abused' and that the district court abused Iwood 485; Ac- Walker, vacating injunction. see tion. 679 S.W.2d discretion See Betts, whether the school cordingly, we consider Aeronautics Comm’n v. also Texas remains unconstitutional (Tex.1971); system finance Conley v. (Tex.1913); following Bill 1. Anderson, Senate S.W. 30-31 Littlefield, Wells Ill “in City Tyler: As we said make certain Bill 1 does changed it is the Senate conditions the absence finance. It public judg improvements

duty trial court to enforce of the long-articulated ob- entered; and, attempts realize the if ment [of Court] directly su- appeal taken to the power pro- "An shall have the 5. "The law, Supreme any trial court appeal preme to the an order of a vide Court court permanent injunction for an direct court from interlocutory perma- order of trial denying of this State from an or granting an or interlocutory granting denying or or ground injunction of the constitu- on the nent tionality grounds of the duty of this state. It is the of a statute any unconstitutionality constitutionality or necessary prescribe supreme court to State, validity or inval- statute of this perfecting procedure to be followed rules of any idity any administrative order issued appeal.” agency under statute of this State.” state jective assuring supplement school districts substan- districts raise revenue to tially tier, similar educational revenue for sim- basic At all allotment. dis- by providing ilar levels of local effort7 guaranteed per tricts receive a revenue array for a wide of biennial studies to weighted for each cent of local tax student neutrality detect deviations from fiscal tier effort above the one minimum level. policy inform senior when in- makers The State funds the difference between the funding required.8 creased state These guaranteed and the amount eaсh revenue policy Leg- makers then recommend generates. If cent of local tax effort islature the amount funds that should be wealthy of tax district is so that each cent allocated for the suc- education for generates guaranteed more than effort Thus, ceeding time, biennium. for the first student, per weighted it receives revenue contains a for biennial mandate tier no two revenue the State.10 To adjustment, upon based information from a funding maximize their entitlement to state studies, battery of with the intention of two, under Bill 1 con- tiers one and Senate preventing opportunity gap between tains most incentives for school districts poor re-widening and rich districts from set their effective local tax at or rates each legislative time action narrows it. state-designated above a level.11 minimum However, essentially Senate Bill 1 leaves The State asserts that as districts re- funding system intact the same with the spond to these incentives and as it shifts same deficiencies we in Edge- reviewed districts, more of its to lower funds wealth wood Bill 1 I. Senate the maintains basic Bill 1 equity Senate will achieve substantial two-tiered еducation finance structure among the of districts educate 95% Program. known as the Foundation School students. The State maintains that exclud- The designed first tier is basic allotment ing the districts with the of wealthiest 5% to enable all districts to a basic the students is reasonable and within the pupils. education to all Each district that Edgewood requirement I “substantially of taxes itself at or above a minimum level is equal pupil access to guaranteed per similar revenues funding, a certain base of level at similar levels of tax effort.” composed revenue, of state and local per weighted argues at 397. It that the cost daily student in annual of average attend- guaranteed equalizing ance.9 The tier all to the second is the districts revenue levels yield tier, equalized or by enrichment which is attainable the richest districts be designed equalize the of ability school approximately four times the annual cost 16.001(c)(1) 7. Senate Bill 1 amends programs, expensive section of are education more to ed- others, yield the Education Code read: "the state ucate than most educational revenue is program рer pu- and local educational according revenue complex distributed formulas pil per cent of effective tax effort shall not be assign "weights” to students different with statistically significantly related to local taxable needs. per wealth student for at least those districts in percent which 95 of students attend school.” However, system, the under current all dis- concept yield The of similar rates similar per $300 tricts receive about student the neutrality." taxation has been termed "fiscal by School Available VII, Fund established article 5(a) the Constitution. The Con- policy 8.- The senior makers are those who serve distribution, require stitution does not stat- Legislative (LEB), Education Board the ing only provid- that "the available fund herein Legislative Budget (LBB), Board Founda- shall be ed distributed the several counties (FSFBC). Budget tion School Fund Committee according population ap- to their scholastic charged by The LEB and LBB are the Senate plied provided in such manner be duty carrying Bill 1 with out the various provided law." The manner distribution is reports regard- studies. The LEB to the FSFBC by statute. § 15.10. Tex.Educ.Code ing funding levels indicated the studies. FSFBC, Governor, comprised The of the Lieu- tier, also district court described a third Comptroller, ultimately tenant Governor consisting supplementation of further local funding legisla- makes recommendations to the system. question school finance ture. of local enrichment continues to be controlled pupils, needing Edgewood 9. Because certain such as those this Court's bilingual participating special instruction or 397-98. operating government. boundaries of the entire state current 1052 districts, if in the new law not Even the incentives do the wealthiest of which results, the produce anticipated to draw funds from a tax continues base newly studies roughly greater contends that mandated per weighted 450 times funding, lead increased state which poorest will It pupil than the district. does not produce equity. in turn Plaintiffs com- will change funding allocation, the basic plain of both the manner which the State all approximately half of education funds attempted neutrality to achieve fiscal coming property taxes from local rather State’s decision to exclude And makes than state revenue. no at- equalization districts from the wealthiest temрt equalize among access funds all formula. By limiting funding districts. formula to districts of the students 95% conflicting We need address the school, attend excluded prognostications parties about 170,- approximately districts which educate imple- whether Bill 1 can or will be Senate and harbor about of the students 15% efficiency among mented to achieve 95% property in the A wealth state. third parties presented Although students. poorest school in the our students attend may may much evidence about what districts which also have about 15% future, happen in before us is issue property Consequent- in the wealth state. present changed have whether conditions 170,000 ly, after Bill students Senate way injunction in such a that the ordered sup- in the districts are still wealthiest by this Court should not enforced. local from the ported by revenues drawn changes material since 1,000,000 same base students I are made Senate Bill those poorest districts. question 1. The address is whether we changes there is that those evidence compel These factors the conclusion as a the violation. remove constitutional the an matter law that made unconstitutionally inefficient use of its re- constitutionality analyzing In the of the The sources. fundamental flaw Senate begin Bill system after Senate we any particular provisions Bill 1 not in lies following conclusion in its overall failure to but restructure grounded on the Texas Constitution: system. property Most owners must bear legislature’s The efforts recent have provide a a heavier tax burden less ex- primarily increasing focused pensive for students in dis- education their money state’s contributions. More allo- tricts, property in a while owners few dis- the present system cated under would lighter pro- bear a much tricts burden to disparities existing reduce some vide more funds students.12 districts would at best between but Thus, Bill Senate 1 fails to “a di- postpone necessary the reform that is rect and close correlation dis- between a A system make the efficient. Band-Aid re- trict’s tax effort and educational suffice; system will not itself must sources available to it.” 777 S.W.2d at 397. changed. be efficient, funding approach system if be is 777 S.W.2d at Even the To that produces equitable dependent property Bill 1 a more on local ad valorem Senate so dollars, propеrty utilization of state educational it taxes must draw revenue from all substantially present remedy major does not causes similar rate. at a opportunity example, not For if the gaps system wide between rich and does do so. County poor change main- districts. It does not the Glen Rose ISD Somerville Yet, explained basically 12. As equitable. message S.B. 1 would the Governor’s veto- is predecessor subsidizing ing system to Senate Bill which had continue current substantially approach: funding expense similar wealthier school districts at property poor bill school districts.... This system isIt the finance itself which is at the property Supreme holding places local an unfair burden on heart of the Texas Court system taxpayers inequitable system. support that our an education violates the Consti- fair, system Leg., tution. The it 71st 5th C.S. 145 current is not SJ. Tex., per greater efficiency in our nue tamed its 1989-90 tax rate of 25.3 cents toward system. finance valuation, hundred one dollars would generate year over this each $9500 approach efficiency is tax Another If property its 1170 students. within expressly Bill 1 base Senate consolidation. Rose at the cent Glen were taxed same 91 legislatures may provides future use that year impose that must rate districts neutrality, to achieve fiscal other methods Senate Bill 1 to maximize the fund- under “redefining base.” including the tax ing they State, prop- receive from the that 16.001(d). disagree with We § Educ.Code erty generate an mil- would additional $28 court’s observation that district Similarly, property if the lion. within option to run afoul of certain “appears Highland County Park Dallas were ISD provisions to taxa- constitutional related level, it generate taxed at that would apparently tion.” The district court was year. prop- additional million this of tax $18 concerned consolidation bases opinion in erty City violated this Court’s Love v. within in Pecos Iraan-Sheffield ISD Dallas, 351, 40 120 Tex. S.W.2d 20 mil- County generate an extra $14 of (1931). case, In that that the City held degree examples lion. These illustrate the compelled Dallas could to educate system the current insulates high school students who resided outside of property from centrated areas of wealth district, city oper- the school which the then being support taxed to schools. part upon ated. dеcision rested The result is that substantial revenue VII, interpretation of article section 3 of system. property lost to the If the these Constitution, which we said “contem- and similar were taxed districts at substan- plates organized districts shall be tially the same rate the rest of the for the taxes levied education scholastics state, property in could within the districts.” Id. have hundreds of millions of dol- additional added). (emphasis S.W.2d at We also at its disposal. lars Whether this addition- implication necessary said that “the al revenue were used increase the attain- provision Leg- constitutional equalized level, funding able ease the compel islature cannot one district to con- burden, State’s ór lower the tax rate each buildings and levy struct taxes the edu- for impose, system district must the be pupils.” cation nonresident Id. {em- of simply by made more utilizing efficient the added). phasis wealthy resources in the districts to the VII of Article the Constitution accords same extent remainder of Legislature to broad discretion create state’s resources are utilized. taxing school districts define their au- There are vast inefficiencies in the struc- thority.14 The Constitution does not system. ture of the current With 1052 present general concept a barrier to the districts, having school some two few as consolidation, nothing tax in base Love students, up twenty and with to districts prevents along creation of districts school single county, duplicative within a adminis- county purpose or lines for the trative costs are unavoidable.13 Consolida- collecting distributing tax revenue and it to tion school districts is one ave- available other school districts within their bound- may countywide 13. Allamoore CSD and Juno CSD have stu- school two district which exercise each, County twenty dents and Harris county contains territory in and for entire of the Moreover, Bexar, independent school districts. taxing power by conferred on school districts Dallas, Hidalgo, McLennan Tarrant Coun- VII, Article Section Constitu- each ties fifteen or more dis- school contain § tion.” 18.01. voters are Tex.Educ.Code tricts. taxing permitted implement such a scheme affecting operation any existing "without grant power Since this constitutional does county.” Chapter Id. school district within the specify statutory implementa- details Education Code is also consistent with tion, a number of alternatives are available distributing edu- counties’ constitutional role in method, Legislature. already One such in Const, VII, § cational resources. See Tex. art. place, allows voters "create an additional cess, duty heed our ensure consolidating we must

aries.15 While bases sys- substantially equal access education not alone assure Texas students efficient revenues, the erred by district court guaranteed to similar tem them the Constitution. constitutionally pro- concluding it is Gordon, in Dallam 397-98 See Morton v. hibited. (Tex.1841). process is to If the educational de- disrupted, will because the be be lightly to strike not undertake We do fur- cannot be mands of the Constitution Legislature. We are down an act of the postponed. ther practical and very of the serious mindful Leg- difficulties which attend historical devising system, in an efficient islature IV legislative recognize we the efforts correctly The district court concluded departments and executive achieve changed since that conditions have prescribe means goal. do not We public fi- school Edgewоod I because Legislature employ must ful-

which the to com- system nance not been altered duty. suggest that filling Nor do we its VII, 1 of the Texas ply with article section will, itself, system funding efficient clearly Constitution. The district court many challenges facing all of the solve refusing to enforce its discretion in abused today. Neverthe- public education in Texas Edge- the mandate of this Court issued less, duty measure plain: is we must wood I. system by public finance school peo- efficiency ordained standard of direct the district court We therefore The test for ple in our Constitution. judgment portion vacate that system meets that standard whether affirmed injunction vacates the Edgewood set forth in our I. Because the dead- Court I.16 that stan- 397-98. Under injunction passed, we set have lines dard, hold as a matter of law we therefore However, those deadlines. modify must system finance public that the school remains the need an efficient VII, 1 of tinues to violate article today last compelling as it when we Constitution. issue, visited this at which time stated: remedy long legisla- “A overdue. court’s desire While we share the district disruption pro- must take immediate action.” of the educational ture to avoid VII, financing property ex- wealth for the 15. Article section 3 of the Constitution education). pressly authorizes the "composed territory wholly ORDERED, injunction school districts It is further that this county parts of two or more within a way enjoining construed as shall no districts, Many as Nuec- counties." successors, Defendants, employ- agents, ISD, Canyon Uvalde Consolidated ISD and es ees, acting attorneys, persons and in concert ISD, parts currently encompass of Sands several direction, en- under their from with them or counties. forcing implementing any other or otherwise provisions of the Texas Education Code. originally injunction issued the dis- 16. The pursue Defendants to In order to allow trict follows: court appeal, upheld this be and should decree their INJUNCTION appeal, to a to allow sufficient time enact hereby It that N. Kir- is ORDERED William funding plan constitutionally for Education, sufficient by, the Texas Commissioner education, Education, injunction stayed is un- and Bull- this State Board of Robert ock, Comptroller September It OR- of the State of Texas and is further til 1989. successors, them, legislature be and are their hereby enjoined and each in the event the enacts DERED that giving any from force and constitutionally plan Septem- sufficient effect to the sections of the Texas Education 1, 1989, stayed injunction further this ber education, financing relating Code to 1, 1990, recognition September that until Program including Act the Foundation School system may require funding any modified Code); (Chapter 16 Education of the Texas implementation. re- period for This of time hereby specifically are en- said Defendants system quirement the modified be that distributing joined any money under the from place by September is not intended to (Tex- Financing System current School fully require said modified be that 16.01, seq., imple- et § as Education Code by September implemented conjunction local school dis- mented in unequal trict that taxable boundaries contain dis- Balancing through the need creation of new school at for We said school districts could against action tricts. these immediate the realities of along organized county or other lines legislative process, desiring and to given authority gener- and could be disruption avoid or minimize of the edu- tax for all of the property ate local revenue stay process, cational we the effect of the school their districts within bound- 1,1991.17 injunction until April The district aries. is directed not extend this deadline modify injunction. or to this go urge us Plaintiff-intervenors now argue all dis- They further. that school promptly We trust district court will state, and tricts are mere creatures of comply, we and will withhold issuance of reality, “in all taxes raised the local level at our writ unless it fails to do so. subject are indeed State taxes to state-wide recapture purposes equalization.” for OPINION FOR ON MOTION position question Their raises wheth- REHEARING Legislature may constitutionally er the au- rehearing, plaintiff- motion On for generate thorize school districts to request that modify intervenors spend local or supplement taxes enrich opinion Dallas, to overrule Love v. City system.1 an efficient Because the Consti- (1931), 120 Tex. 40 S.W.2d 20 or inter permit enrichment, does tution with- pret case “in a that manner equalization, out local taxes cannot be permit recapture of local [state-wide] subject sidered “State taxes to state-wide ad purposes valorem for equal revenues recapture.” We ization.” believe Love sound clearly recognizes Our Constitution Moreover, modify decline to overrule or it. taxes, distinction between state and local interpretation requested plaintiff-in- and the latter are mere creatures tervenors would violate the Texas Constitu provision former. The ad “[n]o Accordingly, tion. we overrule the motion upon any valorem taxes shall be levied rehearing. State,” property Tex. Const. ART. Love, VIII, 1-e, In this Court held the City prohibits § Dallas compelled could not be merely recharacterizing educate property a local VII, students who resided outside the city’s ‍​​​​‌‌​​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌‌‌​​​​‌​​​‌​​​‌​‌​‍tax as a “state tax.” Article however, VII, district. We held Legislature may that article states that “the section 3 of our Constitution “contem- authorize additional ad valorem tax plates organized that districts shall be and be levied and collected within all school taxes levied for the education of scholastics districts heretofore formed hereafter within formed, the districts.” 120 Tex. for the maintenance further Focusing schools, S.W.2d at 27. Legisla- public free erection power ture’s to create school equipment buildings districts and of school there- define taxing VII, Const, authority, we noted in in.” (emphasis 3§ art. that, added). consistent provisions with Love and These constitutional contrary suggestion, district tax court’s mandate that local revenue is not sub- ject recapture. base consolidation could be achieved to state-wide Specifically, modify injunction by 17. yield the if ex- wood II the from local tax effort varies 1, 1989, 1, tending September April the date community’s of the of a because value local 1991, 1990, 1, September Sep- the date consistently urged base.” have Defendants 1, tember 1991. clarify unequalized court whether local en- permissible richment is under the Constitution. addition, plaintiff- 1. response In defendants' Indeed, original by their brief asserted cross- rehearing intervenors’ motion for "there continues to be considerable discussion submits that point "applying the district court erred in equality" of total that mandated the standard meaning language Edgewood of the I unequalized elimination of all local enrichment. Edgewood referenced in 11 of footnote II.” De- rehearing re- The motiоn for and defendants’ “urge clarify fendants therefore the Court to sponse suggest greater clarity need for in whether local enrichment violates the Constitu- interpreted Edgewood argument. Edge- tion as I and our of defendants’ resolution providing “general for diffusion of highlights

This basic conclusion statewide, knowledge” it vio- therefore stitutional distinction between State’s VII, 1 of the Texas lated article section primary obligation the local districts’ (Tex. 395, 777 S.W.2d at Constitution. sys- secondary The current contributions. 1989). that we would We further declared tem unconstitutional because remains specif- legislature as to the not instruct the supplementation is any unequalized local enact; legislation it nor ics of should employed, State relies so but because the order it to raise taxes. We stated did we funding in at- heavily unequalized on local respon- legislature primary has the that the discharge duty tempting its to “make sibility to decide how best to achieve an support provision suitable for system. efficient system pub- of an efficient maintenance Const, VII, lic free schools.” art. issue us II was Edgewood before Legislature providеs l.2 Once the § following whether violation remained compliance with article system efficient Bill 1 the 71st the enactment of Senate VII, 1, efficiency may, long as section so (1991). Legislature. 804 S.W.2d We maintained, local dis- authorize school held that the fundamental flaw Senate educational re- supplement tricts to any particular provisions Bill 1 “lies not in approve an property sources if local owners but in its overall failure restructure the property local tax.3 additional system.” Id. 496. We concluded that at since the school finance had by plaintiff-in- sought the relief Because VII, comply not been altered to with article Constitution, would violate the tervenors Constitution, 1 of Texas section rehearing is overruled.4 their motion for its re- district abused discretion no further mo- This Court will entertain issued in fusing to enforce the mandate rehearing cause. Tex.R. tions for in this Edgewood I. 190(d). App.P. speculate We should not or interfere motion Concurring opinions on ongoing legislative with the debate GONZALEZ, and

rehearing Edgewood to meet mandates I how GAMMAGE, JJ. II; into Edgewood get nor should we legislature giving pre-clear- business of Cоncurring opinion motion for proposed legislation. ance on Muskrat See J., DOGGETT, joined by rehearing by 346, 362, States, U.S. United GAMMAGE,JJ. MAUZY and 255, say L.Ed. 246 To S.Ct. GONZALEZ, Justice, concurring. might what be constitutional would now I, get opinions. advisory we held that the state’s into the area of We Edgewood In repeatedly held that under our consti- financing system was neither finan- have school tution, does cially judicial power nor in the sense of not embrace efficient efficient people giving at an education.” explained As mandate of its efforts Ireland, VII, efficiency Message reprinted in article while not of Governor Session, 66, per capita requiring S.J., "a distribution" or absolute Legislature, Regular 18th equality, prohibit "gross inequalities” added). does 1883) (January (emphasis resulting disparities” from and "vast "concentra- property-rich dis- tions of resources response rehearing, to the 4. In their motion taxing property-poor tricts are when low express concern that if defendant-intervenors taxing high generate districts are cannot Legislature fails to enact a constitutional revenues to meet even minimum stan- sufficient injunc by April school finance bill 397. We there- dards." 777 S.W.2d honoring preclude will tion required close fore "a direct and correlation guarantor obligations bonds issued a district’s tax effort and the education- between These are un school districts. concerns local available Id. at al resources to it." adopt language We the of the trial founded. original regard, modifying this VII, order in court's advocating In the of amendment article 1, 1990, portion September date in that of permit supplementation, Gov- 3 local 1, September 1991. Our deadline explained the order ernor that local districts Ireland 1, 1991, legislative April for action remains levy should be "allowed and collect an addi- aiding unchanged. purpose tional for the the State in

501 DOGGETT, giving advisory opinions. Justice, concurring. Firemen’s Burch, 331, Ins. Co. v. S.W.2d arduously court Twice this has labored (Tex.1969); Ap- v. Correa First Court of one, concerning speak with clear voice 704, peals, (Tex.1990). 795 S.W.2d significant court most case. Twice this has Corbin, As our court stated Morrow v. signed in opinions, by achieved consensus a (1933): 122 Tex. 62 S.W.2d member, single incorporating but the work Ordinarily, we believe the rendition Tragically, unity today of all. advisory оpinions regarded is to be abandoned, shattering abruptly been judi- exercise of executive rather than good upon faith which it was founded. De- power. cial This seems to have been develop- extrajudicial termined react to conception of those who framed Con- ments, jurisdiction, court exceeds its stitution, since instrument rules, ignores contravenes limita- General, Attorney a member of the Exec- imposed tions on it tradition and the Department, only utive is the offi- state It and med- Constitution. muddles the law cer expressly authorized render legislative process. dles in the Advice not opinions. Constitution, article sought properly despite is offered anyway, any rate, 22. At rendition §§ warning of the Chairman the Senate advisory opinions has generally been judicial Education Committee that further judicial held not to be the exercise of will disruptive interference and his indi- power, (citations omitted). Legislature cation already has all reasons, For all I these would overrule judicial advice “to necessary remedy rehearing the motion opin- for without an constitutionally system public flawed ion. educаtion....” Amicus Brief on Motion Parker, Rehearing, 2; Sen. Carl see Justice, GAMMAGE, concurring. Supplemental Response also of Plaintiff- rehearing motion for before this Appellants to Rehearing Motion for at 2 properly only raises one issue—the (Further likely action the court “would viability opinion of our earlier Love impede, than [legisla- rather facilitate this City Dallas, 120 Tex. process.”). Accordingly, opinion tive] nothing Since in either Edgewood rehearing on constitutes a frantic rush to II, or Edgewood S.W.2d stages legis- influence the final of current suggests that Love over- lative prolong deliberations and will ruled, the motion should be with- overruled correction our inefficient educational out opinion. expense at the of the school chil- Any opinion on issued the motion should dren of Texas.1 narrowly confine itself question to the presented. majority’s gratuitous ac- expounds Today judge policy social on tion in addressing matters not raised in preferences resolving rather than a motion. rehearing motion for unnecessary is both underlying writing need for arises and inappropriate, advisory amounts to an from the fеar that may opinion, and is calculated to further con- judicial satisfy otherwise fail to certain de- found public legis- confuse and the sires, may inadvertently pursue not that it process. lative some further unconstitutional course. The restraint reasons,

For observed a unified court has these I concur in the over- ruling promoted by activism majori- become the rehearing the motion for but ty would have done of a one. For reasons opinion, so without an divided set herein, join further Doggett Justice forth I dissent his concur- from the ring opinion. rehearing strongest the motion in the interference, tampering prolongs eighth. 1. Judicial equitable today’s now in the With especially discouraging given generation solution is another children conclude elapsed origi- schooling time that has since complete this cause was before reform is nally grade filed. A child then in the first achieved. 502 supplement to spend decision local taxes enrich

possible terms but concur with the system. an that this motion should be overruled. efficient The motion does not 804 S.W.2d at self-styled “Opinion This on Motion for question. remotely ask even Rehearing” a is a misnomer. It is not true Rather, justify in desperate effort to a opinion generated response party’s to a action, misguided rephrases the court rather, rehearing; motion for it is an an- question judge a present motion to a to a question swer a movant never to The converts the wants answer. asked. motion us The before consists locally-raised may of taxes issue whether narrowly four crafted con- paragraphs of else- be used to fund other school districts cerning opin- a validity single prior of locally-raised state to whether where ion: locally sup- used taxes Rehearing This filed for the Motion for plemental in the same district. funds purpose requesting of modifica- limited Today’s opinion reacts not to a movant’s opin- tion or clarification this Court’s exigen properly pleading solely filed but respect ion with to the continued force in pleadings cies evidenced of a different Dallas, City and effect of Love v. 120 commentaries, reports and sort—media type Appendix A to set forth Plaintiff-Intervenors’ Motion for Rehear- interpreta dissent. constitutional While added). ing (emphasis at 1 If the court adjustment changing tion involves some request that this was either merit- believed societal and must reflect “the conditions response inappropriate, less or the direct understanding that the Constitution was motion as rec- simply to overrule the organic as an document ratified function replies. ommended three of the succinct govern society they and institutions Instead, by overwriting miswriting time,” through evolve Ind. strange- court offers observations that are 391, 394 Kirby, 777 School Dist. v. S.W.2d recap- at one ly aspect variance with (Tex.1989) I); (Edgewood Damon v. Cor Defendants, issue ture on which nett, (Tex.1989), S.W.2d Plaintiff-In- Plaintiff-Appellants, abruptly reinterpret should not the basic agree.2 tervenors all judge jurisprudence fabric our because newspa he is startled what reads in the objective The court’s main is to misuse message today per. The true sent forth party’s pleading single one on a issue to brief, legal political “don’t write a write opponent other unrelated benefit apparently column.” This is the first time wrongfully cerns.3 It claims that the mov- history 151-year in its that the court has ant’s today. operated in the manner position question raises the of whether legislature opin- may constitutionally au- Indicative of the true nature of supporting generate thorize districts to ion is the near total absence of Tex.R.App.P. (emphasis supplied). Response to This 2. Defendants’ Motion for Rehear- brought 2-3; points limits consideration to ing, Plaintiff-Appellants’ Response rule abo, e.g., parties. See Tex.R. forward App.P. Rehearing; Motion for Plaintiff-Intervenors' 131(e) brought (points of to su error Rehearing. Motion for presented preme in motion for court must be rehearing appeals); Lone Star Steel in court applicable procedural clearly speaks rule Owens, (Tex.Civ.App. Co. concerning presentment and consideration n.r.e.) (complaints ref'd writ -Texarkana of such motions: rehearing are not raised in a motion no rehearing may A motion for be filed longer appeals for deci before the courts of days Texas, clerk of court within after the sion); fifteen Appellate Procedure State Bar judgment.... 1979). (2d date of rendition of the today ed. The court rehearing points upon relied for the shall be ignores ordinarily imposed requirements distinctly specified party presentation points in the preservation motion. error. however, here, filing shall or mail such motion deliver is much more than a At issue record, legal appel party, attorney concerning each or his a true intricacies of debate copy procedure. late such motion....

503 And, coup single accomplished to- excepting having case this legal authority rehearing provided day, why conve- is motion for even raised movants a writing. Perhaps may opin- further issue necessary? nient excuse for the court Since only is true for precedent this because the points raised a mov- ions unrelated to today’s embarrassing an action is earlier ant, superfluous. Why itself is motion jurisprudence that chapter in Texas encourage not de- should court parties, attor- court does not cite. Without fix and what- opinion bate an thereafter appeal solely neys, pending or a on its every necessary, resolving dissatis- ever is — leg- initiative—this court once declared own faction, dispelling any and confusion? This re islation unconstitutional. See In House litigants expense further save Legisla- No. Thirty-Eighth Bill 537 paying lawyers tо file motions and ture, 367, (1923).4 256 113 Tex. S.W. 573 legal advice. seemingly respecta- While dressed more camouflage today’s judi- for thickest language, judicial ble a similar encroach- provided disingen- cial handiwork is again today. ment has occurred suggestion Friday uous that a afternoon denying rehearing In the motion for reply by Attorney Morales General Dan to writing issue, completely separate on this only rehearing motion for had some- opinion deprives movants thing Monday to do opinion. with opportunity complain request correc- only request filing from that belated Having tion of this new discussion. re- acts is suggestion ceived, surprise to their cha- undoubted ques- one four we answer at least of the grin, question they an answer to did not tions addressed us an amicus brief. ask, the again movants can never be heard Response Defendants’ for to Motion Re- because court will no fur- entertain “[t]his hearing at Eleven of the 4-5. members rehearing ther motions for in this cause.” Legislature us engage asked what Tex.R.App.P. 804 S.W.2d at 500. See they “extraordinary” step describe 190(d). By including analysis of a new prejudging their conduct.5 Amicus Brief opinion in an denying issue the motion for Rehearing, Junell, Rep. on Motion for at 5. rehearing, the court chisels these words Having already respond determined to stone, arrogating authority itself an be- newspaper pleadings, today’s has yond precedent review. This deciding problem simultaneously answering no questions properly presented not should query nonparties despite of these appellate lawyers alert in all cases to file impropriety.6 rehearing motions for peril. Ask- ing rehearing risky nation, business because From the of our birth courts have the court in its requests enthusiasm rule on declined officials subjects presented denying while fur- government advisory branches of to issue ther review. In was opinions.7 specif- matter Calvert, Declaratory Judgments 4. See also could do that which it do could without counsel, Mandatory more.”); or Discretionary?, 14 St. such action of no see abo Texas— 1, (1982); Note, Mary’s Burrow, L.J. 396, 3 n. (1880). 3 Courts—Con- Moseby v. 52 Tex. ‍​​​​‌‌​​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌‌‌​​​​‌​​​‌​​​‌​‌​‍403 stitutionality Declaratory Judgments, 3 Tex.L. making sugges- An amicus curiae is limited to (1925). Rev. 485 court, Jefferson, City to the Jones v. tions 66 (1886), posing 1 904 Tex. S.W. new ironically One these members achieves Denton, questions. generally, Appellate See J. more here as an amicus than he could at the (O. 355 ed. 2d Procedure in Texas Walker ed. striking trial court where order an his interven- 1979); Krislov, The Amicus Curiae From Brief: Transcript tion issued. at 168-69. Advocacy, Friendship Yale L.J. Club, 6. See Fri v. Sierra 414 U.S. 94 S.Ct. (1973) (finding L.Ed.2d that an amicus 7.Through Secretary written a letter his standing independently has no seek rehear- Jefferson, George Co., Thomas President Wash- ing); State ington sought Texas v. Iron Jefferson ("Our (1883) Supreme from the Court recognized right advice court has concerning legal questions speak, to “secure amicus curiae to held several us against dangerous per- peace while missible," volunteer action of errors to the counsel court, informed, States,” "upon respect being so United and to “insure the of all Constitution, cerning lottery our view or the meth- see ar of a ieally addressed IV, interpreted by our Board odology replacing ticle the State of General, a member of Attorney “the court: opinions of issued Insurance. volume Department, only Executive state General, 193 in Attorney some 1990 by the expressly to render such officer authorized (1991), suggests alone, Tex.Reg. 16 289-92 opinions.” Corbin, [advisory] Morrow v. the breadth this task. (1933); 644 S.W.2d see process which importantly More V, (delimiting Tex.Const. art. Su also § today engages diminishes the the court jurisdiction); Tex. Gov’t preme Court’s opinions. of our As Justice Felix quality 1990) (broad (Vernon Ann. 402.042 Code § on noted his service Frankfurter before Attorney power to ening the General’s is Supreme States Court: United letters). sue advisory opinion deprives constitu- rendering advice has been Because such judgment interpretation of the tional constitutionally deemed to be an executive facts, legislature of the effec- upon function, judicial than a this court rather applica- legislation defence of as an tive opin- previously has refused to issue principles to legal tion of settled new upon request ions even of another court. Morrow, situations, securing at 644. We have and of the means of See legisla- declared unconstitutional an enactment through process facts new tion_ offering purporting to trial authorize propos- legislative submit [T]o prejudgment courts advice on the constitu- instead judicial judgment, als to the tionality regulations. of state statutеs and legislature, deliberate decision of the Id., recently, More 62 S.W.2d 643-44. legislative doubts is to submit instead submitting by enacting a a con- resolution legislative whole convictions. approv- for citizens’ stitutional amendment judicial vision becomes focus answering al to authorize our certified thereby altered. courts, appellate questions from federal Frankfurther, Advisory Opin- A on Note recognized it could Legislature (em- (1924) ions, 37 Harv.L.Rev. statutorily advisory confer this court with added). phasis power.8 keenly many I am aware of the obstacles subjects Today’s opinion rehearing on imposed and limitations on members requests advisory opinions court to undertaking the monumental person just litigants, any from all but restructuring task of the school finance files an amicus brief or writes who judges But must follow time-hon- system. engages editorial. Once ored limitations of a different character. that busi- offering such advice business to uphold function is the Constitution Our prosper. Today one amicus ness will circumstances, and, appropriate under queries; presents four tomorrow develop It inquiries con- common law.10 forty.9 expect refine Soon can legislature school fi- parties." Letter Jefferson to Chief details from Thomas 18, 1793), Jay (July reprinted, legislation, questions in W. Mur- Justice will not end." nance Pritchett, Courts, Judges, phy & C. Politics Rehearing, Brief on Motion for Sen. Amicus 1979). (3d regretting ed. While em- 225-26 Parker, Perhaps at 2. to underscore his Carl might befall the administra- barrassment subsequent sought point in a he our advice tion, justices request they lest refused his filing by posing questions whose answers four careful division of violate the constitutional judicial specific preclearance on bestow powers. Id. at 226. legislation. Sup- pending for Leave to Motion Brief, plement Curiae Sen. and Amend Amicus V, necessity for Tex.Const. art. 3-c. The § Parker. Carl explained: Texas Su- “[T]he amendment preme has that under the Court determined judicial power Poole, does not Texas Constitution em- Corp. 732 S.W.2d El Chico 10. See giving advisory opinions.” Senate Judi- 1987); brace (Tex. v. Houston Chronicle Winters Committee, Analysis, ciary § 1 Bill S.J.R. Co., (Tex. Publishing 725-26 795 S.W.2d R.S. J., 1990) (Doggett, concurring). explained by legislator: "Once As another willingness to advise the Court demonstrates its legislation Judges append- neither draft nor render duct. would become mere advisory opinions. government. ages to other branches safeguard only by Courts liberties not Today’s danger opinion demonstrates the action but their restraint. overreaching answer Through questions addressing Our properly not been asked. decision properly presented genu- the context in Edgewood local enrichment controversies, they ine preserve public con- 397-98, straightforward, and at was has in third government fidence branch of puzzle pre to primarily been a those who disputes as an arbiter of real than rather comprehend it ferred not to or who disliked clearinghouse contempo- as a for advice on they to postscript what read. As a rary Respect problems. judicial for author- prior writings, court’s unanimous this most ity in arises from restraint its use. recent effort more confusion than adds to Undoubtedly, some there a certain clarity. to working allure the notion of this court generalizations sup- few about local Legislature hand-in-hand with the as differ- plementation,12 supporting legal without ent drafts are submitted review. Each authority meaningful analysis, reflect section, chapter, enjoy sentence could nature superficial of the court’s consid- scrutiny the careful of this court. We very important eration of question. this negotiate away any could misunderstand- Nor, despite contrary the court’s insinua- ing requisites perhaps over constitutional tion, 804 S.W.2d at 493 n. have the at same time that the parties fully argued briefed and this issue. resolving budget. the court’s rehearing not, The movant on did might approach While this in result reso- course, question brief a did not ask. significant problem, lution one it would Fortunately, today’s hasty supplement eventually transform the court into an ex- pure in way binding dicta which is no on Legislature. tension itsWith three this or other courts the future and is of separate government,11 branches of our de- highly dubious authoritative value. See mocracy not always problems does resolve Pannell, Boswell 180 S.W. expeditious the most manner. To secure considered, independent judicial review, temptation A final reason to regard avoid delay acceptable some as we pontificating jurisdic- is that the court lacks gratification sacrifice the immediate an- By declining tion do so here. to bring. Disregarding swers to tаke our traditional appeal separation powers quick-fix jurisdiction direct this cause “treatftng] proceeding being [solely] answer undermines the foundation of de- mocracy. joint original pro- Texans the nature of an excluded from mandamus legislative judicial decision-making pro- ceeding direct district court rein- cess would be opportunity injunction,” denied all state our at 804 S.W.2d judicial unbiased legislative review of accept authority the court chose not to Bruff, Board, Separation Property 11. See Powers Under the Tax which is authorized Constitution, uniformity Texas appraisal prac- 68 Tex.L.Rev. to ensure in local tax (1990) ("A strong separation-of-powers procedures? tradition tices and Tex.Educ.Code Ann. prominent (Vernon 1991). is a law.). feature” Texas constitutional § 11.71 What does it effect provisions historically have on those included legislation financing school condition benefits, accreditation, receipt Today's of certain opinion leaves unclear to what ex- tent, levying any, a set legislative if minimum local rate? enactments can restrict barring By apparently taxing authority similar conditions based of school If districts. recapture, opinion on recapture, Texas state casts a constitu- Constitution bars traditionally why imposed leg- cloud equally tional on other are not other limitations upon legislatively-authorized islative conditions taxation dis- flawed? Are roll back By writing considering the elections now an tricts. without rami- unconstitutional interference statements, vague supplementation? with local of overbroad and Tex.Tax Code Ann. fications (Vernon court, works, Supp.1991). intending grease legislative § 26.08 & Does the opinion rehearing simultaneously make unconstitutional throws in a few wrenches. act assur- proceed- nor school districts can with many issues raised in

address brought by the including cross-points concerning this court will do ing, ance what in this cause on defendants. the future. carefully sought to hearing observe first ac- Thankfully judges can be held limitations, declining to jurisdictional these through elec- people countable fees, attorney’s question of pass on the however, process. process, has tion That nothing to do the enforce- “which certain contradictiоns source of been mandate,” 804 ment of our today. Recogniz- evident that have become limiting carefully 4, and our considera- n. ing not want even elected that Texans do questions unnecessary tion of unnecessarily interfering in their judges Id. of enforcement. at-

ultimate issue affairs, it in- some candidates have found “conflicting prognosti- (refusing address creasingly identify themselves beneficial 1Bill can or cations as to whether Senate judicial proponents restraint and their as efficiency to achieve implemented will be some, students”). judicial as activists. To among opponents Because we 95% directly only those matters may generally synonymous address “restraint” is affecting prior man- enforcement our turning In how- reality, clock. back date, supplementation local question of ever, elastic, them is an self-assumed More- properly before court. is not conduct, expe- describing judicial their label over, a of this matter would determination they wish diently adjusted to fit whatever final resolution inappropriate amount to an it, they to write. As define their own of an issue on merits a mandamus example is of conservatism duct solely proceeding that limited consid- if, case, restraint, it ignores in this even ering the trial court abused whether rules, precedent, the and the Constitution. Smith, discretion. See Brownson me, regardless parties or To it means— (1900) (refusing to 57 S.W. 570 reluctance to exceed consti- causes—a pass question that on constitutional judges tutional and a refusal role clarify uncertainty “the which surrounds manipu- engage type in the of conscious reso- system” because [the Victoria] Today’s here. lation that occurred affect lution the issue would not wheth- offering prop- none advice where issue). er the writ of mandamus should represents true activism of the erly sought racing publish this that it is fact It the true dangerous type. most reveals ‍​​​​‌‌​​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌‌‌​​​​‌​​​‌​​​‌​‌​‍branches opinion before those extent of commitment restraint majority’s bespeaks own solution joy- sometimes celebrate its virtues so who legislate adjudi- than eagerness to rather ously. By public display disunity and cate. equivocation, today’s opinion new words of J., MAUZY, joins in this concurrence litigation ensures that this GAMMAGE, J., joins in this go finally nearing an will on indefinite- end parties, separate opinion. ly. Legislature, Neither the concurrence APPENDIX A

Case Details

Case Name: Edgewood Independent School District v. Kirby

Court Name: Texas Supreme Court

Date Published: Feb 27, 1991

Citation: 804 S.W.2d 491

Docket Number: D-0378

Court Abbreviation: Tex.