Raul Hinojosa has appealed from an order of the court below sustaining а plea in abatement and dismissing his suit. Hino-josa alleged that he had been employed as secretary, business manager and tax collector of the defendant district for a term beginning April 16, 1951, and ending the 30th day of June, 1953. He further averred that on or about July 31, 1951, his contract of employment was wrongfully cancelled and he was summarily dismissed. He sought a recovery of damages for his wrongful dismissal.
Hinojosa’s petition contаined the allegation that, “All administrative remedies and conditions precedent to institution of this suit, required or granted by the laws of the State of Texas relating to this cause of action, have been performed and exhausted by the Plaintiff.” By its plea in abatement the defendant school district alleged that, “Plaintiff did not appeal to the school authorities in accordance with the provisions of thе laws of this State and the Rules of Procedure prescribed by the Texas Educatiоn Agency nor exhaust his remedies provided by law before resorting to the Court for rеdress and before the filing of this suit and, therefore, the Plaintiff is barred from seeking relief hеre and said suit should be dismissed at the Plaintiff’s cost.”
The order appealed from rеcites that, “the court having heard and fully considered the pleadings, the evidence and the argument of counsel is of the opinion that said plea in abatement should be sustained and the cause dismissed.” As no statement of facts was filed in this Court, we must assume that the evidence supports the allegations contained in the рlea in abatement, to the effect that the plaintiff failed to exhaust his administrаtive remedies before instituting his suit in the district court.
Appellant-first contends that the plea filed' by the school district was not a plea in abatement but rather a plеa in bar. The plea asserted that the district court did' not then have jurisdiction of thе cause because certain preliminary procedures had not beеn instituted with the educational authorities. The plea may properly be considered a plea in abatement, because the effect of sustaining the same is to abate the suit until the statutory requirements of appeal to the educational authorities have been complied with. After these prerequisites have been met, a judicial proceeding may be instituted, provided the same be not barred by some statutory or regulative rule of limitation. However, in our opinion it is-immaterial whether the plea be called a plea in abatement, a plea in bar, or a plea to the jurisdiction. The point raised and’ decided by the trial court was that before Hinojosa could apply to the courts it wаs necessary that he exhaust the administrative remedies afforded to him by statute.
It appears well settled that prior to
1949,
an employee of a school district, whose contract of employmеnt was allegedly wrongfully terminated, was required to apply to the school authorities for relief before filing his suit in the district court. Bear v. Donna Independent School District, Tex.Civ.App.,
In our opinion thе provisions of the 1949 Act cannot be construed as evidencing a legislative intent to abrogate the-then existing statutory plan which was intended to keep school controversies out of the courts as much as possible. The plan or рrocedure providing for preliminary action by the school authorities deрrives no-
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person of his legal rights, but simply provides an orderly procedure by which thеy may be enforced. The question of whether ■or not appellant was rightfully dismissed from his position with the school district obviously involves a question of fact. It was therefore necessary that appellant appeal to the proper school authorities before filing a suit in the district court. Bruce v. Stillwell, 5 Cir.,
The judgment of the trial court is affirmed.