893 S. W. 2d 432

TEXAS EDUCATION AGENCY et al., Petitioners,

v.

Gary W. LEEPER et ux. et al., Respondents.

No. D-2022.

Supreme Court of Texas.

June 15, 1994.

Rehearing Overruled March 16, 1995.

Opinion by Justice Gonzalez Concurring in Part and Dissenting in Part on Rehearing filed March 16, 1995.

From the District Court No. 17, Tarrant County, Charles J. Murray, J.

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Janet Little Horton, Houston, S. Anthony Safi, El Paso, John Owens, Dan Morales and James C. Todd, Austin, for petitioners.

Chester G. Ball, Arlington, J. Shelby Sharpe, Fort Worth, Morris Harrell, Dallas, John W. Whitehead, Charlottesville, VA, for respondents.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, DOGGETT, CORNYN, GAMMAGE, ENOCH and SPECTOR, Justices, join, and in Parts I, II and III of which GONZALEZ, Justice, joins.

All school-age children in Texas are required to attend public schools a minimum number of days each year unless exempted by law. TEX. EDUC. CODE § 21.032. Among those exempt from this requirement is "any child in attendance upon a private or parochial school which shall include in its course a study of good citizenship". Id. § 21.033(a)(1). The dispute in this class action centers on whether the private school exemption includes children who are taught at home, in a bona fide manner, a curriculum designed to meet certain basic education goals, including a study of good citizenship. The district court construed the exemption to include such children and permanently enjoined all school districts and their attendance officers from enforcing the compulsory attendance law based upon any other reading of § 21.033(a)(1). The district court also awarded attorney fees. The court of appeals affirmed. 843 S. W. 2d 41.

The relative merits of home schooling and public education are currently the subject of a vigorous and sometimes emotional debate in which the legal issues we address here do not require us to take part. We agree that Texas law does not require children who are taught in legitimate home schools to attend public schools. We therefore affirm the lower courts' construction of §
21.033(a)(1) and the award of attorney fees. The State has charged a number of parents who educate their children at home with criminal violations of the compulsory attendance law. The district court enjoined all further such prosecutions not based upon a proper construction of the private school exemption. We conclude, however, that a permanent injunction against school districts and their agents is unwarranted, as there is no showing that school officials will refuse to abide by our decision in this case. Accordingly, we reverse the injunctive portion of the lower courts' judgments.

I

A

The important features of the historical backdrop to this litigation are not among the issues in dispute and may be described as follows.

At the beginning of this century the public school system of Texas was not well developed. No more than ten percent of school-age children attended public schools, according

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to the uncontradicted evidence at trial, and as there were few private and parochial schools in the State, many children were taught at home.

Public school attendance was not mandatory in Texas until 1916. The first compulsory attendance law, enacted the prior year, required children between eight and fourteen years of age to attend public school for 60 days during the 1916-1917 school year, 80 days the following year, and 100 days each year afterward. Act of March 8, 1915, 34th Leg., R. S., ch. 49, §
1, 1915 Tex. Gen. Laws 92, 93. Parents (and persons acting as parents) were responsible for assuring that children complied. Id. § 9, at 96-97. Failure to discharge this responsibility was a misdemeanor punishable by a fine, unless the person in the parental role could not control the child. Id. A child who refused to attend school could be disciplined by the juvenile court as a habitual truant. Id. The statute authorized appointment of attendance officers to enforce its provisions. Id. §§ 6-7, at 94-95.

Over the years the details of these statutory provisions have changed, but the basic structure remains in place. 1 Now children from about six to seventeen years of age must attend public school at least 170 days each school term. TEX. EDUC. CODE § 21.032(a).2 A parent or person in that role who has been warned in writing to require a child to comply with the compulsory attendance law, and who fails to do so, may be fined, and a child's refusal to attend school may be sanctioned by the juvenile court. Id. § 4.25(a)-(b);3 TEX. FAM. CODE

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§ 51.03(b)(2).4 Each day a child is absent after warning is given or attendance is ordered is a separate offense. TEX. EDUC. CODE § 4.25(a). Also, a parent's rights in a child may be terminated if the parent fails to enroll a child in public school as required by law. TEX. FAM. CODE § 15.02(a)(1)(J)(i).5

The first compulsory attendance statute exempted several classes of children from compliance, including "[a]ny child in attendance upon a private or parochial school or who is being properly instructed by a private tutor." Act of March 8, 1915,
34th Leg., R. S., ch. 49, § 2(a), 1915 Tex. Gen. Laws 92, 93. This provision was amended in 1923 to add two requirements for private and parochial schools and to remove the reference to private tutors, so that the statute was changed to exempt:

Any child in attendance upon a private or parochial school which shall include in its course a study of good citizenship, and shall make the English language the basis of instruction in all subjects. . . .

Act approved March 23, 1923, 38th Leg., R. S., ch. 121, § 2, 1923 Tex. Gen. Laws 255, 255. At the time, according to all the evidence presented in this case, a child pursuing a bona fide course of study at home designed to meet the basic education goals of reading, spelling, grammar, mathematics and good citizenship was considered to be attending a private school. Thus, the 1923 amendment to the exemption, omitting the reference to private tutors, did not affect children schooled at home. The only other times the exemption was amended was in 1969 and 1971, when the English language restriction was first moved and then dropped. See Act of May 7, 1969, 61st Leg., R. S., ch. 289, § 1-3, 1969 Tex. Gen. Laws 871, 871; Act of May 20,
1971, 62nd Leg., R. S., ch. 405, § 40, 1971 Tex. Gen. Laws 1449, 1513. The exemption, as we noted at the outset, is now codified as § 21.033(a)(1), TEX. EDUC. CODE.

Enactment of the compulsory attendance law in 1915 did not end home schooling; some children continued to be educated at home just as they had before. The important fact, for purposes of analysis of the legal issues before us, is that some school-age children have been educated at home since before the compulsory attendance law was passed in 1915, and the State never attempted to prohibit or even restrict home schooling, or to allege a violation of the compulsory attendance law based solely on a child's being taught at home, until 1981.

That year, a staff attorney for the Texas Education Agency advised an assistant superintendent for one school district that "home instruction is not one of the enumerated exemptions" to the compulsory attendance law. 6 He added:

In order to avoid the sanctions of compulsory attendance, home instruction would,

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most likely, have to be qualified as a private school. Unfortunately, there are no provisions in the law which define a private school for these purposes.

. . . [A]s a result of the present status of the law and as a result of the general absence of legislative guidance in this area, school districts and parents alike would be well advised to proceed with caution in this area. In light of all this confusion, it would appear that the courts would be the proper forms [sic] in which to evaluate any particular home study situation as a prospective exemption from compulsory attendance.

The following year the TEA's assistant general counsel expressed an even stronger position in response to an inquiry by parents considering home schooling:

The compulsory student attendance laws of the State of Texas do not permit students to be taught at home. . . . The exemption statute provides that a child in attendance upon a private or parochial school which shall include in its course a study of good citizenship is exempt from the requirements of compulsory attendance. There is no exemption for home tutorial programs.

. . . A school, whether private, public, or parochial, must include retained and qualified teachers; a collection of students from different families; a curriculum that includes the basic academics as are taught in public schools; and some organizational structure that assures that instruction does, in fact, occur.

The continuous policy of this office is based upon much more than a cursory review of the statutes. All of our legal research concludes that a person may not teach their children at home simply by calling their home a private school. If educational programs conducted in a home environment are to be allowed as exemption to the compulsory attendance law, action of the Legislature will be required.

The Legislature took no action, although a number of bills were introduced in 1985.7 That same year, the Texas Education Agency issued a publication entitled HOUSE BILL 72 AND SUBSEQUENT EDUCATIONAL LEGISLATION: COMPREHENSIVE REFERENCES AND EXPLANATIONS, which included a section devoted to the compulsory attendance law, even though that law was not affected by House Bill 72 or any subsequent educational legislation. For the first time, the TEA published its interpretation of the private school exemption:

It is the agency's interpretation that under this compulsory attendance law, private school attendance is an acceptable substitute for public school attendance. However, educating a child at home is not the same as private school instruction and, therefore, not an acceptable substitute.

If a school district knows of a situation in which a school age student is not being educated in compliance with compulsory attendance statutes, the district should file charges against the parent under the compulsory attendance law.

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Correspondence courses are not a legal substitute for attendance at a public or private school.

TEX. EDUC. AGENCY, HOUSE BILL 72 AND SUBSEQUENT EDUCATIONAL LEGISLATION: COMPREHENSIVE REFERENCES AND EXPLANATIONS 213 (1985).

Although the Commissioner of Education testified that the TEA never changed its policy refusing to exempt home schooled students from the compulsory attendance law, the fact remains that there is no evidence of such policy prior to 1981. Nor were the policy statements from 1981-1985 made after hearings or other proceedings before the TEA. Most importantly, the TEA itself now concedes in its briefs and oral argument before this Court that its interpretation of the private school exemption, beginning in 1981 and restated in its 1985 publication, was "anomalous".

B

Based upon the TEA's policy statements from 1981-1985, school districts and their attendance officers began prosecuting violations of the compulsory attendance law based upon nothing other than the fact that a child was being schooled at home. In all, some 150 prosecutions were initiated, and about 80 of them were actually tried. The State's position in those prosecutions was that a home school was never a private school within the meaning of the statutory exemption, § 21.033(a)(1), and never exempt from the compulsory attendance law.

To halt the State's enforcement of this policy, this class action was filed in March 1985. The district court certified three plaintiff classes: one comprised of parents, another of private schools who furnish curricula for home schools, and the third of other providers of home school curricula. Specifically, the district court defined the first class as those parents —

who either [a] have enrolled their school-age children in private or parochial schools outside their homes receiving the curricula and instruction of these schools in their homes which includes in the course a study of good citizenship or [b] have established a private school in their homes which involves in its course a study of good citizenship.

Nine married couples with school-age children were named as representatives of the class. 8 Two of the couples had been prosecuted for violating the compulsory attendance law, based upon the TEA's 1981 policy, and two others had been threatened with prosecution. 9 The second class included the Calvert School, Inc., the First Baptist Academy of Dallas, Christian Liberty Academy Satellite Schools, and others "who have established private or parochial schools where the students receive their curricula including a study of good citizenship and instruction in their homes." The third class consisted of Reform Publications, Inc. d/b/a Basic Education, American Christian Schools, Inc., and others "who provide curricula including in their courses a study of good citizenship and instruction for private schools in homes." The Home School Legal Defense Association was named as an individual plaintiff.

The district court also certified a defendant class comprised of all "public school districts and their school attendance officers", represented by three such districts and officers. 10 Besides this class, there were

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four named defendants: the TEA; the Texas Commissioner of Education; the Assistant General Council of the TEA; and the Attorney General of Texas.

Plaintiffs contended that defendants had misinterpreted the private school exemption and sought a declaration to that effect under the Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE §§ 37.001-.011. Plaintiffs also claimed that defendants' enforcement of the compulsory attendance law infringed upon their constitutional rights, in violation of the federal Civil Rights Act, 42 U. S. C. § 1983. Plaintiffs sought an injunction prohibiting all school districts and attendance officers from enforcing the compulsory attendance law against bona fide home schools. Plaintiffs also claimed attorney fees.

Consistent with the TEA's 1985 statement of policy, the Attorney General in his original answer in this suit specifically denied that a home school could be a private school within the meaning of § 21.033(a)(1). No other defendant adopted this position, however, and the Attorney General himself abandoned it in later pleadings. About a year after the suit was filed, on April 12, 1986, the State Board of Education issued a resolution calling upon the Legislature to define the private and parochial school exemption and recommending that school districts follow new standards in applying the exemption pending legislative action. 11 That resolution stated:

WHEREAS the State Board of Education has been requested by various parties to define the terms "private or parochial school" as contained in Article 21.033 of the Texas Education Code; and

WHEREAS the legal authority of the State Board of Education to make such definition has been questioned by various entities, including, we are advised, the Texas Legislative Council;

NOW, THEREFORE, the State Board of Education urges the Texas Legislature either to define such terms or specifically to authorize the State Board of Education to do so at its regular session in 1987.

The State Board of Education further recommends to the various school districts of Texas that the following guidelines may be utilized in determining whether an entity is a private or parochial school for the purposes of Article 21.033 pending the action of the Texas legislature:

(1) An entity that is accredited by an accrediting organization recognized by the Commissioner of Education, or

(2) An entity that meets the following criteria:

a. It instructs students in facilities that comply with applicable local fire and sanitation codes;

b. It has a written regular plan of instruction sufficient to meet basic student educational goals;

c. Its students shall annually be administered a recognized nationally norm-referenced standard achievement test. Evidence of such administration and the results thereof shall be furnished upon request to the attendance officer for the public school district in which the private or parochial school is located. The local school district may require that the next administration of such achievement test be by qualified test administrator, or

(3) An entity that furnishes evidence satisfactory to the attendance officer of the school district in which the private or parochial school is located, that it meets the criteria required by the Commissioner of Education for an entity to be accredited by a recognized accrediting organization under (1) of this section.

The above guidelines will not be interpreted in such a manner as to interfere with the exercise of religious freedom guaranteed by the United States and Texas Constitutions.

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Defendants contended that the 1986 resolution— to which the Legislature chose not to respond— mooted plaintiffs' complaints, for reasons we consider in detail below. The district court rejected this contention.

Shortly after the SBOE issued the 1986 resolution, the parties to this action notified the members of the various classes that they had reached agreement concerning the proper construction of § 21.033(a)(1). That construction was to be effectuated by an agreed interlocutory judgment of the district court which provided in part as follows:

Accordingly, the Court declares that a school-aged child residing in the State of Texas who is regularly and diligently pursuing in the child's home a written curriculum of either a private or parochial school in which the child is enrolled which exists apart from the child's home or which has been obtained from other sources, said curriculum following a regular plan of instruction designed to meet basic educational goals of reading, language arts, mathematics and a study of good citizenship, is considered to be in attendance upon a private or parochial school within the meaning of [s 21.033(a)(1) ]. The Court further finds that the current curricula of [the named representatives of the second and third plaintiff classes] are written curricula following a regular plan of instruction designed to meet basic educational goals of reading, language arts, mathematics and a study of good citizenship. This finding is made so that the school attendance officers of the public school districts in the State of Texas will be able to identify a curriculum for a school-aged child at home who is considered to be in attendance upon a private or parochial school. The Court also finds that if parents or those standing in the parental relationship to such a child furnish to any public school attendance officer upon his written request the results of a nationally normed standard achievement test which was given in accordance with the instructions accompanying the test and was taken within the preceding twelve (12) months of the written request showing that the child is making reasonable academic progress for that child, then this furnishing shall establish that the child is regularly and diligently pursuing the curriculum being taken.

The agreement did not encompass plaintiffs' claims for injunctive relief, damages and attorney fees. In response to the notice to the classes, a number of members of the first class of plaintiffs appeared before the district court and objected to the proposed agreed judgment. Consequently, the named plaintiffs withdrew from the agreement, and the proposed judgment was never presented to the district court.

Following trial before the bench, the district court rendered judgment in favor of plaintiffs. One portion of that judgment declared the proper construction of the private school exemption in § 21.033(a)(1). We quote the district court's declaration, inserting divisions among its components:

a school-age child

• residing in the State of Texas who is pursuing under the direction of a parent or parents or one standing in parental authority in or through the child's home

• in a bona fide (good faith, not a sham or subterfuge) manner

• a curriculum consisting of books, workbooks, other written materials, including that which appears on an electronic screen of either a computer or video tape monitor, or any combination of the preceding from either (1) of a private or parochial school which exists apart from the child's home or (2) which has been developed or obtained from any source,

• said curriculum designed to meet basic education goals of reading, spelling, grammar, mathematics and a study of good citizenship,

is in attendance upon a private or parochial school within the meaning of Section 21.033(a)(1) of the Texas Education Code and exempt from the requirements of compulsory attendance at a public school.

The court's judgment further provided:

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This judgment does not preclude the Texas Education Agency, the Commissioner of Education or the State Board of Education from suggesting to the public school attendance officers lawful methods, including but not limited to inquiry concerning curricula and standardized test scores, in order to ascertain if there is compliance with the declaration contained in this judgment. However, this judgment is not to be interpreted as requiring standardized tests in order for there to be compliance with the interpretation made by the court of [s 21.033(a)(1) ]. The lawful powers of investigation by public school attendance officers and the constitutional rights of persons subject to such investigations are not affected by this judgment.

This construction of § 21.033(a)(1), and the use of standardized tests as one indicia of compliance, are essentially the same provisions to which the parties agreed prior to trial before plaintiffs withdrew their consent.

The district court also held that children of the named representatives of the parent class and children studying materials provided by the named plaintiff institutions at home in a bona fide manner were exempt from the compulsory attendance law. The district court determined that any enforcement of the policy in the 1985 publication or the recommendation in the 1986 resolution would violate plaintiffs' due process and equal protection rights under the United States and Texas Constitutions. The court permanently enjoined all school districts and attendance officers from initiating charges of violations of the compulsory attendance law based upon any construction of § 21.033(a)(1) other than that contained in the court's declaratory judgment. Finally, the court awarded plaintiffs attorney fees against the school districts, but not against any of the other defendants.

The court of appeals concluded that plaintiffs were not entitled to relief under the state declaratory judgments act because the compulsory attendance law is penal. 843 S. W. 2d at 48. The court based this conclusion on the rule that the constitutionality of a criminal statute cannot be determined, and its enforcement enjoined, in a civil proceeding absent a showing of irreparable injury to plaintiffs' property rights, which has not been attempted in this case. Id.; see State v. Morales, 869 S. W. 2d 941 (Tex.
1994). The court did not explain why this rule should apply to the private school exemption in § 21.033(a)(1), which is a civil statute distinct from the enforcement provisions of § 4.25, or why the rule should preclude a construction of § 21.033(a)(1) without reference to its constitutionality. The court of appeals did hold, however, that plaintiffs had demonstrated a violation of their constitutional rights to equal protection, and were therefore entitled to all the relief awarded by the district court under the federal Civil Rights Act. 843 S. W. 2d at 48-51. In the course of its analysis the court concluded that the district court properly construed the private school exemption. Id. at 51-52.

We granted writ of error to review the correctness of the district court's construction of the private school exemption, the propriety of injunctive relief, and the award of attorney fees to plaintiffs.

II

Before we turn to the central issues in the case, we must address three jurisdictional issues raised by defendants: whether plaintiffs' action was mooted by the SBOE's 1986 resolution; whether plaintiffs seek to construe and enjoin enforcement of a criminal statute over which a civil district court lacked jurisdiction; and whether the TEA's 1986 resolution regarding the private school exemption is an administrative rulemaking.

A

Defendants contend that plaintiffs' complaints are directed against the TEA's 1985 policy statement which defendants now admit was "anomalous" and which the TEA has abandoned. Defendants argue that plaintiffs meet the standard the SBOE adopted in its 1986 resolution and thus can no longer complain of the TEA's enforcement of the compulsory attendance law.

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Although there is language in the court of appeals' opinion to suggest that the named individual plaintiffs in the action would meet the standard adopted in the 1986 resolution, 843 S. W. 2d at 51-52, the evidence does not bear this out. The first requirement of the 1986 resolution is that the facilities where students are instructed— i. e., plaintiffs' homes— comply with applicable local fire and sanitation codes. There is no evidence that the nine couples named in the action instruct their children in homes that comply with applicable local fire and sanitation codes (or, for that matter, of what those codes require of homes). The third requirement of the 1986 resolution is that students be given nationally norm-referenced standard achievement tests annually. According to the evidence at trial, only one of the nine plaintiff couples met this requirement. Eight of the plaintiff parents testified that they had tested their children at least once, but two testified that they would not do so again because they know without tests how their children are progressing. There is no evidence whether one of the nine couples did or did not give their children achievement tests. Plaintiffs oppose making either of these factors— compliance with building codes or administration of achievement tests— essential to qualification for the private school exemption. With respect to the second requirement of the 1986 resolution — a written plan of instruction sufficient to meet basic student educational goals— plaintiffs agreed that some plan was important but that it did not always need to be written. Moreover, it is not clear whether plaintiffs and the TEA would agree on what are basic student educational goals.

In sum, plaintiffs and defendants do not agree on when home schooled children should be exempt from the compulsory attendance law. Plaintiffs contend that the 1986 resolution does not correctly construe § 21.033(a)(1); defendants disagree. A case is moot when there is no actual controversy between the parties. City of West University Place v. Martin, 132 Tex.
354, 123 S. W. 2d 638, 639 (1939). The disagreement among the parties in this case is not academic or abstract; it is real and affects the rights and interests of all parties. The case is clearly not moot.

B

Defendants argue, and the court of appeals concluded, that the district court had no jurisdiction to construe and enjoin enforcement of § 21.033(a)(1) in a civil proceeding because it is a criminal statute. Defendants and the appeals court are correct that, as a rule, a party cannot seek to construe or enjoin enforcement of a criminal statute in a civil proceeding without a showing of irreparable injury to the party's vested property rights, which showing is absent here. See State v. Morales, 869 S. W. 2d 941 (Tex. 1994). However, the rule does not apply in this case because § 21.033(a)(1) is not a criminal statute.

It clearly is not a criminal statute on its face, and defendants do not argue that it is; rather, they argue that it is in effect a defense to prosecution under § 4.25, which clearly is a criminal statute, and that the general compulsory attendance provision, § 21.032(a), the exemptions, § 21.033, and the enforcement provision, § 4.25, should all be read together as parts of a penal provision. That the three statutes must be read together cannot be denied: it is impossible to determine whether a fine should be imposed under § 4.25 without determining whether the subject child is exempt from attending public schools under § 21.033. That fact alone, however, does not dictate that a statute which is not criminal on its face must be considered part of one that is, and therefore beyond the jurisdiction of civil courts to construe.

If the sole function of § 21.033 were to define the elements of the offense proscribed by § 4.25, or the elements of a defense to prosecution, the question whether § 21.033 is penal would be much closer. As it is, § 21.033 serves a function unrelated to prosecution under § 4.25. It is part of the basis for determining whether a child who is not in attendance in public school is subject to supervision under § 51.03 of the Family Code,

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and whether a parent of the child may have his or her parental rights terminated for failing to enroll the child in school under §
15.02 of the Family Code. Not only is § 21.033 on its face a civil statute, it also has civil consequences. Defendants cite no authority for treating a statute like § 21.033 as a criminal statute.

Defendants argue that plaintiffs have foregone any claim to relief under the declaratory judgment statutes because they did not perfect an appeal to this Court from the court of appeals' adverse ruling on this issue. Such an appeal, however, was unnecessary. The appellate court's judgment upheld plaintiffs' claims for declaratory and injunctive relief, albeit on the basis of §
1983 and not state law. Since plaintiffs prevailed in the court of appeals, they are entitled to support that court's judgment by any argument, including those that the appellate court rejected. They need not perfect a separate application for writ of error unless they wish to obtain from this Court a different and more favorable judgment. See Donwerth v. Preston II Chrysler-Dodge, 775 S. W. 2d 634, 639 n. 5 (Tex. 1989); see also id. at 643 (Ray, J., concurring) (explaining cross-points and separate appeals in intermediate courts and supreme court).

Accordingly, we conclude that the district court had jurisdiction to construe § 21.033(a)(1).

C

Defendants argue that the SBOE's 1986 resolution is an administrative rulemaking which, under the Administrative Procedure Act ["the APA"], can be challenged only by appeal to a district court in Travis County. TEX. GOV'T CODE §
2001.038.12 The recommendation contained in the resolution, defendants argue, fits squarely within the statutory definition of an administrative rule: "a state agency statement of general applicability that . . . implements, interprets, or prescribes law or policy. . . ." Id. § 2001.003(6)(A)(i). Plaintiffs respond that the Legislature has not authorized the SBOE to make rules construing private schools generally or § 21.033(a)(1) in particular. Alternatively, plaintiffs argue that the 1986 resolution cannot be a rule because it does not say it is a rule and the SBOE made no attempt in issuing it to comply with the notice and hearing requirements for rulemaking proceedings. Defendants answer that plaintiffs' arguments are precisely the sort of complaints that § 2001.038 of the APA requires to be raised in a district court in Travis County. Defendants also argue that plaintiffs were required to raise their complaints within two years of the issuance of the 1986 resolution under § 2001.035 of the APA. 13

In effect, defendants argue that although the SBOE did not treat the 1986 resolution as a rule at the time, and did not follow any of the procedures prescribed by statute for adopting rules, the resolution is a rule which can be challenged only in a Travis County District Court, and the time for complaining about the total lack of any rulemaking procedures has passed. At best, this argument is disingenuous. On its face, the resolution is little more than an urging to the Legislature to further define the private and parochial

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school exemption in § 21.033(a)(1). It goes no further than to "recommend[ ] to the various school districts . . . guidelines . . . pending the action of the Texas legislature". It even recites that the SBOE's authority to define "private or parochial school" has been challenged by various entities, among them the Texas Legislative Council. As the SBOE is charged with implementing legislative policy, an opinion of the Legislative Council that the SBOE lacked authority to clarify § 21.033(a)(1) would appear to be entitled to considerable weight. 14 The SBOE offers no explanation why, if it thought the resolution was an agency rule in
1986, it made no effort to comply with the requirements of the APA before the resolution issued.

Not every statement by an administrative agency is a rule for which the APA prescribes procedures for adoption and for judicial review. As noted above, the APA applies only to statements of general applicability that implement, interpret or prescribe law or policy. The 1986 resolution was not such a statement. It urged action by the Legislature and recommended guidelines to school districts. The guidelines were only recommended, not prescriptive, and they did not purport to implement or interpret § 21.033(a)(1) or agency policy, but only to provide direction pending action by the Legislature. In these circumstances, defendants' argument that the 1986 resolution constitutes a rule is plainly incorrect. 15

Since plaintiffs' challenge to the 1986 resolution is not governed by the APA, the district court had jurisdiction of this case. Having reached this conclusion, we need not address plaintiffs' contention that the SBOE has no authority to make rules construing § 21.033(a)(1).

III

We come now to the central issue in the case. Defendants acknowledge, contrary to their position from 1981-1986, that a home school can be a private school within the meaning of § 21.033(a)(1). Plaintiffs do not contend that every home school falls within the exemption, but only, as the district court held, homes in which children are taught in a bona fide manner from a curriculum designed to meet basic education goals. Plaintiffs also do not contend that the use of standard achievement tests cannot be considered in ascertaining whether a home school is being taught in a bona fide manner; they argue only, again as the district court held, that the use of such tests cannot be the determining factor.

The evidence in support of the district court's construction of § 21.033(a)(1) is virtually undisputed. Defendants do not deny that from 1916 to 1981 students in bona fide home schools were not prosecuted for violation of the compulsory attendance law. Defendants also concede that the TEA's policy from 1981-1986, that no home school could be a private school within the meaning of § 21.033(a)(1), was wrong. Defendants acknowledge the right of parents to teach their children at home and the efficacy of that means of education when it is conducted in a bona fide manner. Defendants were willing to agree before trial to essentially the same construction of § 21.033(a)(1) as the district court eventually reached. Defendants argue even now that the nine plaintiff couples come within the "private school" exemption from the compulsory attendance law, even though there is no evidence that they have met two of the elements prescribed by the 1986 resolution. From the record before us, we conclude that the district court's declaration of the meaning of "private school" in

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§ 21.033(a)(1), as it relates to home schools, is clearly correct.

Defendants argue that the district court's judgment deprives the SBOE of its proper role in developing policies for the public schools. We do not believe that it does. The SBOE has the power and duty to "take actions necessary to implement legislative policy for the public school system of the state." TEX. EDUC. CODE § 11.24(a). Legislative policy regarding the exemption of students in private schools from attendance in public schools is expressed in § 21.033(a)(1). The district court has construed that provision as it has been understood and applied for most of this century. The SBOE continues to have responsibility for implementing the statutory policy. The SBOE is not authorized, however, to change legislative policy; that is the sole province of the Legislature. The Legislature has not accepted the SBOE's invitation in its 1986 resolution to clarify the private school exemption. The Legislature has indicated, however, that it considers home schools to fall within the exemption. In amending §
4.25 and other provisions of the Education Code in 1989, the Legislature stated:

Nothing in this Act applies to students in attendance upon a private or parochial school, which includes home schools, in accordance with Section 21.033, Education Code.

Act of May 28, 1989, 71st Leg., R. S., ch. 658, § 11, 1989 Tex. Gen. Laws 2165, 2168 (emphasis added).

As we have noted above, plaintiffs argue that the TEA has no authority to promulgate rules construing § 21.033(a)(1). The decision we reach does not require that we address this argument today. On the other hand, nothing in our opinion precludes the TEA from setting such guidelines for enforcement of the compulsory attendance law as are within its authority. Specifically, the TEA is not precluded from requesting evidence of achievement test results in determining whether children are being taught in a bona fide manner. While administration of such tests cannot be a prerequisite to exemption from the compulsory attendance law, we do not preclude the TEA from giving this factor heavy weight. Should the SBOE choose to promulgate additional rules under the Administrative Procedure Act, its authority to do so and the propriety of such rules will be subject to judicial review.

IV

The district court awarded plaintiffs costs and attorney fees to be paid by the defendant school districts, but not by any of the other defendants. 16 The court based its award on a provision of the Texas Uniform Declaratory Judgments Act ["the DJA"], TEX. CIV. PRAC. & REM. CODE § 37.009, which authorizes the award of such reasonable and necessary attorney fees as are just and equitable, and 42 U. S. C. § 1988. The court of appeals affirmed, but only on the basis of § 1988. We conclude that the award of attorney fees was proper under the DJA and do not address § 1988.

The school districts argue that as a rule they have governmental immunity from liability for attorney fees, and that this immunity is not waived by the DJA. A number of decisions from the courts of appeals have concluded that the DJA does not waive governmental immunity for attorneys fees. 17 At

Page 445

least one appellate court has concluded that the Act does waive governmental immunity from an award of attorney fees and costs for a municipality, insofar as the Act defines "person" as including municipalities, requires municipalities to be joined in actions involving the validity of an ordinance, and allows awards of attorney fees and costs without any indication of an intent to exempt municipalities. 18 Several other cases affirm attorney fee awards against governmental entities without any discussion of sovereign immunity. 19

We have touched on the issue in several cases without ever expressly deciding it. In Oake v. Collin County, 692 S. W. 2d
454 (Tex. 1985), a declaratory judgment action involving a property tax dispute, we considered whether the trial court had abused its discretion in refusing to award attorney fees against various governmental entities and concluded that it had not. We did not suggest that the taxing units and counties in that case were immune from liability for attorney fees under the DJA. In Duncan v. Pogue, 759 S. W. 2d 435 (Tex. 1988), rev'g 753 S. W. 2d 255 (Tex. App.— Tyler 1988), without mentioning governmental immunity, we concluded that the trial court acted within its discretion in awarding attorney fees against the county commissioners' court. The court of appeals had held that the DJA does not authorize an award of attorney fees against a county.

In other cases we have awarded attorney fees against governmental entities based upon other statutes. In Texas State Employees Union v. Texas Dep't of Mental Health and Mental Retardation, 746 S. W. 2d 203 (Tex. 1987), the award of fees was based on provisions covering damages, costs, and fees adjudged in a cause of action for the deprivation of a right, privilege or immunity secured by the constitution or laws of this State or the United States, against state employees, officers or governing board members who acted in the course or scope of their employment. TEX. CIV. PRAC. & REM. CODE §§
104.001-.003 (now providing for indemnification up to specified amounts).20 In Camarena v. Texas Employment Comm'n,
754 S. W. 2d 149 (Tex. 1988), the award of fees was based on provisions prohibiting state officials from discriminating on the basis of a person's race, religion, color, sex, or national origin. TEX. CIV. PRAC. & REM. CODE § 106.001-.002. In Lee v. City of Houston, 807 S. W. 2d 290 (Tex. 1991), the district court granted declaratory relief and attorney fees, and the court of appeals reversed. We reversed the appellate court's holding on the merits and remanded the case to the trial court for entry of judgment consistent with our opinion, without addressing the availability of attorney fees. In a subsequent original proceeding to enforce the Court's judgment, Lee v. Downey, 842 S. W. 2d 646, 649 (Tex. 1992), the Court directed the trial court to award attorney fees and indicated that the award was authorized by TEX. LOCAL GOV'T CODE § 143.015, which allows attorney fees in appeals from decisions of the Fire Fighters' and Police Officers' Civil Service Commission. 21

The DJA is a remedial enactment which allows courts to declare relief, whether or not further relief is or could be claimed, to "settle and afford relief with respects to rights, status, and other legal relations". Id. §§ 37.002, .003(a). A person "whose rights,

Page 446

status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder." Id. § 37.004(a). All persons who have or claim any interest that would be affected by the declaration must be made parties; those not made a party are not prejudiced by any declaration. Id. § 37.006(a). If the validity of a municipal ordinance or franchise is involved, a municipality must be made a party, and if a statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general must be served with a copy of the proceeding and is entitled to be heard. Id. § 37.006(b). The Act specifically authorizes an award of "costs and reasonable and necessary attorney's fees as are equitable and just." Id. § 37.009.

The DJA expressly provides that persons may challenge ordinances or statutes, and that governmental entities must be joined or notified. Governmental entities joined as parties may be bound by a court's declaration on their ordinances or statutes. The Act thus contemplates that governmental entities may be— indeed, must be — joined in suits to construe their legislative pronouncements. These provisions provide the context for the Act's authorization, in § 37.009, of attorney fee awards. We conclude that by authorizing declaratory judgment actions to construe the legislative enactments of governmental entities and authorizing awards of attorney fees, the DJA necessarily waives governmental immunity for such awards.

The school districts complain that the award of fees was not properly adjudicated against them, in that plaintiffs' claims were primarily directed against the state defendants. We note, however, that the district court directed the award to be paid by the TEA from funds designated for public school districts. The school districts also complain about the inclusion of various items in the district court's award. They argue that plaintiffs were required to segregate time spent on temporary injunctive relief and the non-federal claims on which plaintiffs did not prevail. The record reflects that all plaintiffs' attorneys' time was spent on issues related to the declaratory relief which was granted. The school districts also argue that some items of expenses and costs were not recoverable. We conclude, however, that the districts have failed to show reversible error.

Accordingly, we hold that the district court's award of attorney fees was authorized by the DJA and was not an abuse of discretion.

V

The district court enjoined defendants from enforcing the compulsory attendance law contrary to the construction set out in the court's judgment. There is no indication, however, that defendants will attempt to contravene the district court's judgment, or ours. On the contrary, we are confident that defendants will abide by our decision in carrying out their duties. Accordingly, we conclude that issuance of a permanent injunction was unnecessary and should be reversed. 22

The lower courts held that defendants had violated plaintiffs' constitutional rights and § 1983 of the federal Civil Rights Act. As we have accorded plaintiffs all the relief to which they are entitled under the Declaratory Judgments Act, we do not reach their constitutional arguments under § 1983. The 1986 resolution acknowledged that home schooling may involve constitutional claims of religious freedom. Our decision today need not, and does not, address such claims.

* * * * * *

The judgment of the court of appeals is reversed insofar as it affirms the district court's permanent injunction. In all other respects the judgment of the court of appeals is affirmed.

1 Present statutes omit one significant provision of the 1915 law: "Any child within the compulsory school attendance ages who shall be insubodinate [sic], disorderly, vicious or immoral in conduct, or who persistently violates the reasonable rules and regulations of the school which he attends, or who otherwise persistently misbehaves therein so as to render himself an incorrigible, shall be reported to the person exercising the duties of attendance officer of said school, who shall proceed against such child in the juvenile court as herein provided." Act of March 8, 1915, 34th Leg., R. S., ch. 49, § 9, 1915 Tex. Gen. Laws 92, 97.

2 "Unless specifically exempted by Section 21.033 of this code or under other laws or unless a child is at least 17 years of age and has been issued a high school equivalency certificate, every child in the state who is as much as six years of age, or who is less than seven years of age and has previously been enrolled in first grade, and who has not completed the academic year in which his 17th birthday occurred shall be required to attend the public schools in the district of his residence or in some other district to which he may be transferred as provided or authorized by law a minimum of 170 days of the regular school term of the district in which the child resides or to which he has been transferred."

3 Until 1993, § 4.25 provided as follows:

(a) If any parent or person standing in parental relation to a child, within the compulsory school attendance ages and not lawfully exempt or properly excused from school attendance, fails to require such child to attend school for such periods as required by law, it shall be the duty of the proper attendance officer to warn, in writing, the parent or person standing in parental relation that attendance must be immediately required. If after this warning the parent or person standing in parental relation intentionally, knowingly, recklessly, or with criminal negligence fails to require the child to attend school as required by law, the parent or person standing in parental relation commits an offense. The attendance officer shall file a complaint against him in the county court, in the justice court of his resident precinct, or in the municipal court of the municipality in which he resides or in the municipality or justice of the peace precinct in which the school is located. In addition, if the child has been voluntarily absent from school for 10 or more days or parts of days within a six-month period or three or more days or parts of days within a four-week period without the consent of his parents, the attendance officer shall refer the child to the county juvenile probation department for action as conduct indicating a need for supervision under Section 51.03(b), Family Code. A court in which a complaint is filed under this subsection shall give preference to a hearing on the complaint over other cases before the court. An offense under this section is punishable by a fine of not less than $5 nor more than $25 for the first offense, not less than $10 nor more than $50 for the second offense, and not less than $25 nor more than $100 for a subsequent offense. Each day the child remains out of school after the warning has been given or the child ordered to school by the juvenile court may constitute a separate offense. If the court probates the sentence, the court may require the defendant to render personal services to a charitable or educational institution as a condition of probation.

(b) It is a defense to prosecution under Subsection (a) of this section that the parent or person standing in parental relation to the child is unable to compel the child to attend school.

In 1993, there were three amendments, each without reference to the others, to this version of § 4.25. See Act of May 18, 1993,
73rd Leg., R. S., ch. 358, § 2, 1993 Tex. Gen. Laws 1528, 1629-30; Act of May 28, 1993, 73rd Leg., R. S., ch. 347, § 6.01, 1993 Tex. Gen. Laws 1479, 1527-28; Act of May 29, 1993, 73rd Leg., R. S., ch. 930, § 1, 1993 Tex. Gen. Laws 3949, 3950. None of these amendments are important to the issues in this case.

4 "Conduct indicating a need for supervision is . . . the unexcused voluntary absence of a child on 10 or more days or parts of days within a six-month period or three or more days or parts of days within a four-week period from school without the consent of his parents. . . ."

5 "[A] petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that . . . the parent has . . . been the major cause of . . . the failure of the child to be enrolled in school as required by the Texas Education Code. . . ."

6 The Texas Education Agency is actually the Central Education Agency, which is composed of the State Board of Education, the State Board for Vocational Education, the commissioner of education, and the State Department of Education. TEX. EDUC. CODE § 11.01. The State Board of Education and the State Board for Vocational Education are identical. Id. § 11.24. The SBOE, which has fifteen members elected from districts in the state, is responsible for implementing legislative policy for the public school system. Id. §§ 11.2101, 11.24. The commissioner of education is the executive officer of the TEA and the SBOE. Id. §§ 11.25, 11.52. The State Department of Education is the professional, technical and clerical staff of the TEA. Id. § 11.61.

7 Tex. H. B. 29, 69th Leg., R. S. (1985) (requiring home educators to register, provide at least 170 days of instruction, and maintain attendance and immunization records, and requiring students not to score below the district average on annual tests); Tex. H. B. 431, 69th Leg., R. S.
(1985)
(exempting persons from compulsory attendance law based upon sincerely held religious belief); Tex. H. B. 673, 69th Leg., R. S.
(1985) (exempting children schooled by parents from compulsory attendance law). None of these bills were reported out of committee. House Bill 317, which attempted to amend § 4.25(a) of the Education Code by removing parents and guardians of home schooled students from the class of individuals subject to criminal sanctions for violating the compulsory attendance law, was reported out of committee but defeated on the House floor, apparently for fear that the provision would establish a precedent for regulation of home schools. Tex. H. B. 317, 69th Leg., R. S.
(1985).

8 The class representatives were Gary W. and Cheryl Leeper, Bruce and Patricia Smythe, Calvin E. and Wanda Minkler, Quinten T. and Sandra Parten Jr., Tony and Suzanne Martinez, Charles and Corlee Kent, John W. and Helen Jackson Jr., Michael R. and Sally K. Galbraith, and Richard and Kay Wells.

9 The Galbraiths and Wells were actually prosecuted; the Leepers and Minklers received letters from school officials threatening prosecution.

10 Named as representatives of the defendant class were the Arlington Independent School District and its attendance officer, Max Kidd; the Katy Independent School District and its attendance officer, Helena Blackstock; and the El Paso Independent School District and its attendance officer, Charles F. Hart.

11 As noted above, supra n. 6, the SBOE is the component of the TEA charged with implementing legislative policy.

12 The law governing administrative rulemaking in 1986, TEX. REV. CIV. STAT. ANN. art. 6252-13a, has since been recodified as chapter 2001 of the Government Code. For purposes of this case the repealed provisions are identical to the recodified provisions, and we refer to the latter.

Section 2001.038 provides in pertinent part:

"(a) The validity or applicability of a rule . . . may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.

"(b) The action may be brought only in a Travis County district court."

13 "(a) A rule adopted after January 1, 1976, is not valid unless a state agency adopts it in substantial compliance with Sections
2001.023 through 2001.034 [prescribing notice, hearing, and other requirements].

"(b) A person must initiate a proceeding to contest a rule on the ground of noncompliance with the procedural requirements of Sections 2001.023 through 2001.034 not later than the second anniversary of the effective date of the rule."

14 The Texas Legislative Council is a legislative agency composed of the Lieutenant Governor, the Speaker of the House of Representatives, the chairs of the Senate and House administration committees, four other senators, and nine other representatives. TEX. GOV'T CODE §
323.001(a)-(b). Among the powers of the Council are to "study and investigate the functions and problems of state departments, agencies, and officers". Id. § 323.006(a)(1).

15 Cf. 1 KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 6.2 (3d ed. 1994)
(distinguishing statements to which federal Administrative Procedure Act, 5 U. S. C. § 553, does and does not apply); 3 BASIL J. MEZINES, JACOB A. STEIN & JULES GRUFF, ADMINISTRATIVE LAW § 15.07[4] (1990, Supp. 1991) (distinguishing statements to which federal Administrative Procedure Act, 5 U. S. C. § 553, does and does not apply).

16 The trial court also concluded that the representative school district fees should not have to bear their attorney fees and expenses alone, and awarded these districts fees from the other districts in the defendant class. The representative districts do not argue that governmental immunity would bar their awards from the other districts.

17 See Dallas Area Rapid Transit v. Plummer, 841 S. W. 2d 870 (Tex. App.— Dallas 1992, writ denied); Waugh v. City of Dallas,
814 S. W. 2d 492 (Tex. App. — Dallas 1991, writ denied); Rodeheaver v. Steigerwald, 807 S. W. 2d 790 (Tex. App.— Houston [14th Dist.]
1991, writ denied); Texas Dep't of Human Serv. v. Methodist Retirement Serv., Inc., 763 S. W. 2d 613 (Tex. App.— Austin 1989, no writ); City of Houston v. Lee, 762 S. W. 2d 180 (Tex. App.— Houston [1st Dist.] 1988), rev'd on other grounds, Lee v. City of Houston,
807 S. W. 2d 290 (Tex. 1991); Texas Employment Comm'n v. Camarena, 710 S. W. 2d 665 (Tex. App. — Austin 1986), rev'd on other grounds,
754 S. W. 2d 149 (Tex. 1988). See also City of Houston v. De Trapani, 771 S. W. 2d 703 (Tex. App.— Houston [14th Dist.] 1989, writ denied)
(affirming award of fees under federal civil rights act, but noting that such award would not be available under state declaratory judgments act).

18 City of El Paso v. Croom Const. Co., 864 S. W. 2d 153 (Tex. App.— El Paso 1993, writ denied) (construing contract to build stadium).

19 See, e. g., District Judges v. Commissioners Court, 677 S. W. 2d 743 (Tex. App.— Dallas 1984, writ ref'd n. r. e.). See also International Ass'n of Firefighters Local 624 v. City of San Antonio, 822 S. W. 2d 122, 132 (Tex. App.— San Antonio 1991, writ denied)
(reversing on other grounds and remanding for possible award of attorney fees under § 37.009); Lubbock Prof. Firefighters v. City of Lubbock, 742 S. W. 2d
413, 418-19 (Tex. App.— Amarillo 1987, writ ref'd n. r. e.) (reversing on other grounds and remanding for possible award of attorney fees).

20 We note that although the trial court found that the TEA had acted in bad faith, it did not find that any individual acted in bad faith, and concluded that no attorney fees, expenses or costs shall be borne by any school attendance officer or individual defendant.

21 A dissenting opinion on rehearing, in which the author of this opinion joined, expressed the view that the DJA does not waive governmental immunity for an award of attorney fees. 842 S. W. 2d at 654 n. 4 (Gonzalez, J., dissenting on rehearing).

22 The school district defendants argue that the classes of plaintiffs and defendants were improperly certified for an award of injunctive relief. Defendants do not make the same argument with respect to the award of declaratory relief. As we have reversed the district court's injunction, we need not consider whether the classes were properly certified.

Page 447

GONZALEZ, Justice, concurring in part and dissenting in part on motion for rehearing.

My opinion of June 15, 1994 is withdrawn and this one is substituted in its place. With the exception of the discussion of attorneys' fees and court costs, I join the Court's opinion and judgment. I dissent, however, from Part IV of the Court's opinion, from the order denying a motion for rehearing, and from that part of the judgment which orders that the plaintiffs recover attorneys' fees and court costs from the defendants. In this case, the doctrine of sovereign immunity precludes an award of attorneys' fees against the defendants in the absence of an express waiver of immunity by the Legislature. The Court errs in ruling that the Uniform Declaratory Judgments Act (DJA), TEX. CIV. PRAC. & REM. CODE §§ 37.001-.011, implicitly waives sovereign immunity so that defendants may be held liable for attorneys' fees. 893 S. W. 2d 432, 445-46 (Tex. 1994). The Court gives the DJA a curious construction that is not supported by logic or well-established precedent and a construction which has the potential for disastrous effects on school districts and other governmental agencies. I would grant the motion for rehearing and hold that the school districts are not liable for attorneys' fees under the DJA, but would consider whether they are available under 42 U. S. C. § 1983.

I continue to adhere to the principles expressed in my opinion in Lee v. Downey, 842 S. W. 2d 646, 655 n. 4 (Tex. 1992)
(Gonzalez, J., dissenting on motion for rehearing). To recover attorneys' fees in this case, the plaintiffs must show that their suit is an exception to two broad rules. The first rule is that subdivisions of the sovereign are immune from suit. See W. D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S. W. 2d 838, 839 (1958) (approving the court of appeals' statement that a suit against the state should be abated "because of the State's immunity from suits brought without its consent," 303 S. W. 2d 443, 445
(Tex. Civ. App.— Fort Worth 1957)). Only the Legislature may waive sovereign immunity. Guillory v. Port of Houston Auth., 845 S. W. 2d 812, 813 (Tex. 1993); see Barr v. Bernhard, 562 S. W. 2d 844, 846 (Tex. 1978) (citing Lowe v. Texas Tech Univ., 540 S. W. 2d 297, 298 (Tex. 1976)) (stating, "any waiver of governmental immunity is a matter to be addressed by the Legislature."); Hosner v. DeYoung, 1 Tex. 764, 769 (1847) (holding "No State can be sued in her own Courts without her consent and then only in a manner indicated by that consent."). Furthermore, the Legislature must use clear and unambiguous language to waive immunity. See Guillory, 845 S. W. 2d at 813-14 (explaining that waiver exposes the government to increased liability that ultimately the state's taxpayers bear); Texas Prison Bd. v. Cabeen, 159 S. W. 2d 523,
525-28 (Tex. Civ. App.— Beaumont 1942, writ ref'd) (examining a statute to determine if the Legislature had expressly waived sovereign immunity). The second rule is that attorneys' fees may not be awarded unless prescribed by statute for the particular kind of case. First City Bank v. Guex, 677 S. W. 2d 25, 30 (Tex. 1984); see Texas Employment Comm'n v. Camarena, 710 S. W. 2d 665, 670 (Tex. App.— Austin 1986), rev'd on other grounds, 754 S. W. 2d 149 (Tex. 1988). These rules prohibit a court from awarding attorneys' fees merely because it deems them appropriate. Camarena, 710 S. W. 2d at 670. Thus, in this case, an award of attorneys' fees would be permissible only if a statute expressly waived sovereign immunity and authorized the recovery of attorneys' fees from the defendant governmental agencies.

The DJA does not. The DJA waives sovereign immunity insofar as it permits plaintiffs to bring actions in order to construe legislative enactments of governmental entities; it also requires that interested parties, including governmental agencies, be joined in these suits. See TEX. CIV. PRAC. & REM. CODE §§ 37.004(a), 37.006. However, the Court confuses this waiver of the government's immunity from suit with waiver of immunity from liability. See Missouri Pac. R. R. v. Brownsville Navigation Dist., 453 S. W. 2d 812, 813 (Tex. 1970); accord Couch v. Ector County, 860 S. W. 2d 659, 661 (Tex. App.— El Paso 1993, no writ); Avmanco, Inc. v. City of Grand Prairie, 835 S. W. 2d 160, 164-65 (Tex. App.— Fort Worth
1992, appeal dism'd as moot); Dillard v. Austin Indep. Sch. Dist., 806 S. W. 2d 589, 592 (Tex. App.— Austin 1991, writ denied). Nowhere does the DJA expressly

Page 448

authorize this Court to hold a governmental entity liable for attorneys' fees in a declaratory judgment action. See Lee, 842 S. W. 2d at 655 n. 4 (Gonzalez, J., dissenting on motion for rehearing); Dallas Area Rapid Transit v. Plummer, 841 S. W. 2d
870, 875 (Tex. App.— Dallas 1992, writ denied); Waugh v. City of Dallas, 814 S. W. 2d 492, 496-97
(Tex. App.— Dallas 1991, writ denied); Rodeheaver v. Steigerwald, 807 S. W. 2d 790, 793
(Tex. App.— Houston [14th Dist.] 1991, writ denied), cert. denied, 502 U. S. 1093, 112 S. Ct. 1167, 117 L. Ed. 2d 414
(1992); City of Houston v. De Trapani, 771 S. W. 2d 703, 708 (Tex. App.— Houston [14th Dist.] 1989, writ denied); Texas Dep't of Human Servs. v. Methodist Retirement Servs., Inc., 763 S. W. 2d 613, 614 (Tex. App.— Austin
1989, no writ); City of Houston v. Lee, 762 S. W. 2d 180, 188 (Tex. App.— Houston [1st Dist.] 1988), rev'd on other grounds, 807 S. W. 2d 290 (Tex. 1991); Camarena, 710 S. W. 2d at 670. For this reason alone, the order that the defendants pay attorneys' fees is erroneous.

The Court compounds its error by determining that the DJA implicitly authorizes the plaintiffs' recovery of attorneys' fees in this declaratory judgment suit. 893 S. W. 2d at 445-46. This holding conflicts with the legislative admonishment that a "resolution granting permission to sue does not waive to any extent immunity from liability." TEX. CIV. PRAC. & REM. CODE §
107.002(b) (Supp. 1995) (emphasis added). When the Legislature was considering the House Bill it later enacted as the attorney fee provision of the DJA, the director of the Legislative Budget Board sent a fiscal note to the Committee on Judiciary of the House of Representatives which stated:

No fiscal implication or additional cost to the State or units of local government attributable to the bill, should it be enacted, is anticipated.

FISCAL NOTE, Tex. H. B. 375, 67th Leg., R. S., ch. 190, § 1, 1981 Tex. Gen. Laws 455, 455 (amending TEX. REV. CIV. STAT. art. 2524-1 § 10, now codified at TEX. CIV. PRAC. & REM. CODE § 37.009). The Legislature did not intend or foresee that it was authorizing the award of attorneys' fees and court costs against state entities when it amended the DJA.

Only through a feat of statutory sleight of hand does the Court achieve its holding that attorneys' fees can be awarded under the DJA. The result is a disappearing act for the rule requiring a clear and unambiguous waiver of sovereign immunity. As stated, the DJA simply does not contain a clear and unambiguous statement that a governmental entity may be held liable for attorneys' fees. See TEX. CIV. PRAC. & REM. CODE § 37.009. The Legislature certainly has the power to place this burden on taxpayers. However, in my opinion, it has not done so in the clear and unambiguous language that this Court has previously required.

I would retain the rule that the Legislature must expressly waive sovereign immunity. By finding an implied waiver of sovereign immunity in this case, the Court disturbs an important principle in the law of sovereign immunity. Presumably a plaintiff may now recover whatever costs, fees, or damages which he or she can persuade a trial court that a statute impliedly allows. By its ruling today, the Court turns the law of sovereign immunity on its head. Now a governmental entity will have to identify statutes that expressly bar recovery of costs, fees, or damages before it will be excused from such liability. Thus, the Court's implied waiver ruling introduces a grave threat to the state's financial resources.

Furthermore, the Legislature is perfectly capable of drafting statutes which expressly waive sovereign immunity, without assistance from us or any other court. For example, the Texas Tort Claims Act has a clear and unambiguous waiver of sovereign immunity, thereby allowing a plaintiff to bring suit against a governmental entity in certain circumstances. See TEX. CIV. PRAC. & REM. CODE § 101.025(a) ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter."). However, the Texas Tort Claims Act does not expressly provide for the recovery of fees and costs, and no court has awarded them to a plaintiff under the Act. See id. § 101.021(1) (allowing a governmental unit to be liable solely for "property damage, personal injury, and

Page 449

death"); id. § 101.023 (capping liability for bodily injury or death). Similarly, the Open Government Act expressly authorizes actions against otherwise immune governmental entities in order to prevent violations of the Act. TEX. GOV'T CODE §
551.142. In contrast to the Texas Tort Claims Act, the Open Government Act unambiguously states that a court "may assess costs of litigation and reasonable attorney fees incurred by a plaintiff . . . who substantially prevails in an action" against members of "a governmental body." Id. Finally, the Whistleblower Act expressly provides for waiver of immunity and for recovery of attorneys' fees. See id. §§ 554.001-.009. If a state agency or local government suspends, terminates, or discriminates against a public employee who has reported a law violation, the employee is entitled to sue for injunctive relief, actual and exemplary damages, court costs, and "reasonable attorneys' fees."1 Id. §§ 554.002, 554.003(a). There are other examples in which the Legislature has expressly authorized the recovery of attorneys' fees or costs from a governmental entity. See, e. g., TEX. CIV. PRAC. & REM. CODE § 105.002; id. § 106.002(b). The Legislature's specificity of language in the Open Government Act and the Whistleblower Act sharply contrasts with the general provisions the Court relies on in this case for awarding attorneys' fees under the DJA.

Another flaw with the Court's reasoning regarding attorneys' fees is the possible result: the imposition of a $400,000 burden on Texas taxpayers which the Legislature never envisioned when it passed the DJA. Holding that the DJA waives sovereign immunity to the extent of allowing an award of attorneys' fees in this case could "divert money from the schools and would thereby impair the quality and availability of public education." Duson v. Midland County Indep. Sch. Dist., 627 S. W. 2d
428, 429 (Tex. Civ. App.— El Paso 1981, no writ) (affirming the nonapplicability of the Texas Tort Claims Act to public school districts). Unless the plaintiffs are required to obtain a legislative appropriation to collect the $400,000 judgment, the potential drain of tax dollars to pay attorneys' fees from funds earmarked for education cannot be minimized. 2 In today's litigious society, suits against school districts over dress codes, school prayer, sex education, cheerleader selections, and the like are not uncommon. Such litigation drains scarce funds and diverts the energies of school officials from the task of education. Because of the tremendous costs associated with litigating these issues, some school districts will decide to compromise on matters of principle rather than go to court and defend them. Unless the Legislature revisits the issue of governmental immunity from attorneys' fees and court costs, to correct the Court's holding in this case, there is the potential of a further drain on scarce educational dollars.

The Court's opinion (although not its judgment) approves the trial court's order that the Texas Education Agency exclusively pay the plaintiffs' attorneys' fees, in theory to relieve the defendant school districts from the burden of paying them. The effect is the same. Whether the trial court orders the TEA or each district to pay the award of attorneys' fees, school districts will be deprived of money intended for education.

For these reasons, I would withdraw the opinion of the Court and grant the motion for rehearing. A new opinion addressing the issue of the award of attorneys' fees and court costs under 42 U. S. C. § 1983 is preferable

Page 450

to the current opinion, which stands the law of sovereign immunity on its head.

1 Even then, it may take a legislative appropriation to collect a judgment from the state. See Green v. Sharp, 37 Tex. Sup. Ct. J. 1227 (Sept. 29,1994) (orig. proceeding) (overruling motion for leave to file a petition for writ of mandamus to compel the Comptroller of Public Accounts to issue a check from the state treasury to satisfy a judgment against the Texas Department of Human Services); Texas Dep't of Human Servs. v. Green, 855 S. W. 2d 136, 145 (Tex. App.— Austin 1993, writ denied) (stating that the prevailing plaintiff must request a legislative appropriation to collect damages awarded him under the Whistleblower Act).

2 For example, besides the $400,000 award for attorneys' fees and court costs from public school funds in this case, a trial court in another case recently awarded $48,000 to the attorneys of an elementary school student who challenged the hair grooming regulations of the school district he was attending. See Gamboa, Judge Rules in Favor of Bastrop Student and His Ponytail, AUSTIN AM. STATESMAN, Feb. 11, 1995, at B1.

843 S. W. 2d 41

80 Ed. Law Rep. 388

TEXAS EDUCATION AGENCY; Commissioner of Education, W. N. Kirby; Assistant General Counsel of the Texas Education Agency, F. Patrick Whelan; Jim Mattox, Attorney General of Texas; Arlington Independent School District, its school attendance officer, Max Kidd; Katy Independent School District, its school attendance officer, Helena Blackstock; and El Paso Independent School District, its school attendance officer, Charles F. Hart, Individually and in Behalf of the Class of Public School Districts and Their School Attendance Officers in the State of Texas, Appellants,

v.
Gary W. LEEPER and wife, Cheryl Leeper, Bruce Smythe and wife, Patricia Smythe, Calvin E. Minkler and wife, Wanda Minkler, Quinten T. Parten, Jr. and wife, Sandra Parten, Tony Martinez and wife, Suzanne Martinez, Charles Kent and wife, Corlee Kent, John W. Jackson, Jr. and wife, Helen Jackson, Michael R. Galbraith and wife, Sally K. Galbraith, and Richard Wells and wife, Kay Wells, Individually and Representative of all Persons who are Teaching their Children at Home in the State of Texas; Calvert School, Incorporated, First Baptist Academy of Dallas, Reform Publications, Inc., d/b/a Basic Education, American Christian Schools, Incorporated, and Christian Liberty Academy Satellite Schools, Individually and Representative of all other Entities Who are Providing Home School Curricula and Instruction to Families Residing in the State of Texas, Appellees.

No. 2-87-216-CV.

Court of Appeals of Texas, Fort Worth.

November 27, 1991.

Rehearing Denied December 31, 1991.

From the 17th District Court, Tarrant County, Charles J. Murray, J.

Page 42

[NOTE: IN THE BOUND VOLUME, THIS PAGE CONTAINED HEADNOTES.]

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Jim Mattox, Atty. Gen., Mary F. Keller, First Asst., Lou McCreary, Executive Asst., James C. Todd, Chief, General Litigation, and Kevin T. O'Hanlon, Asst., Austin, for appellant Texas Educ. Agency, et al.

Ball, Landrith, Kulesz & Hubble, Chester G. Ball, Arlington, for appellant Arlington I. S. D.

Bracewell & Patterson, Janet L. Horton, Houston, for appellant Katy I. S. D.

Grambling & Mounce, S. Anthony Safi and Steven L. Hughes, El Paso, for appellant El Paso I. S. D.

Law Offices of J. Shelby Sharpe, J. Shelby Sharpe, Fort Worth, The Rutherford Institute, John W. Whitehead, Manassas, Va., Locke, Purnell, Rain, Harrell, Morris Harrell, Dallas, for appellees.

Before FARRIS, LATTIMORE and MEYERS, JJ.

OPINION

LATTIMORE, Justice.

This is an appeal of the judgment in a class action suit brought by home school parents and home school providers under 42 U. S. C. S. § 1983 (1986) (Civil action of deprivation of rights) and TEX. CIV. PRAC. & REM. CODE ANN. § 37.001 et seq.
(Vernon 1986) (Declaratory Judgments Act) against the Texas Education Agency, its Assistant General Counsel, Texas Attorney General Jim Mattox, and three independent school districts and their attendance officers, by which plaintiffs were awarded a declaratory

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judgment, a permanent injunction and attorneys' fees against certain named defendants and members of the defendant class of public school districts and their school attendance officers. The declaratory judgment, which will be later described in detail, can be summarized as declaring children attending schools conducted in the children's homes and considered to be meeting certain criteria, are in attendance upon a private or parochial school and are exempt from the requirements of compulsory attendance at a public school. All Texas school districts and their school attendance officers were permanently enjoined from initiating charges for thwarting the compulsory attendance law against parents of school-age children who are being taught in a bona fide manner in or through their home, or need for supervision by reason of unexcused absence from school, if the initiation of such charges is based upon two specific written interpretations, by the Texas Education Agency and the State Board of Education, of the exemption provisions of the compulsory attendance statute, section 21.033(a)(1) of the Texas Education Code, or any other attempt by the State Board of Education to define or regulate private or parochial schools. Attorneys' fees and expenses in excess of $360,000 were allowed to plaintiffs against the school district defendants.

The issues raised on appeal are: whether the civil court had jurisdiction to construe and enjoin enforcement of a penal statute or to determine the validity or applicability of the State Board of Education guidelines to that penal statute; whether plaintiffs' equal protection and due process rights were violated; whether the awards to plaintiffs were barred by the doctrines of sovereign and governmental immunities; and whether there was factual and legal sufficiency of evidence to support class-wide injunctive relief, the declaratory judgment, or attorneys' fees.

We affirm.

At the heart of this case are the following provisions of the Texas Education Code as they existed in 1987:

Sec. 21.032. Compulsory Attendance

(a) Unless specifically exempted by Section 21.033 of this code or under other laws, every child in the state who is as much as seven years of age, or who is less than seven years of age and has previously been enrolled in first grade, and who has not completed the academic year in which his 16th birthday occurred shall be required to attend the public schools in the district of his residence or in some other district to which he may be transferred as provided or authorized by law a minimum of 170 days of the regular school term of the district in which the child resides or to which he has been transferred.

Sec. 21.033. Exemptions

(a) The following classes of children are exempt from the requirements of compulsory attendance:

(1) any child in attendance upon a private or parochial school which shall include in its course a study of good citizenship. . . .

Sec. 4.25. Thwarting Compulsory Attendance Law

(a) If any parent or person standing in parental relation to a child, within the compulsory school attendance ages and not lawfully exempt or properly excused from school attendance, fails to require such child to attend school for such periods as required by law, it shall be the duty of the proper attendance officer to warn, in writing, the parent or person standing in parental relation that attendance must be immediately required. If after this warning the parent or person standing in parental relation intentionally, knowingly, recklessly, or with criminal negligence fails to require the child to attend school as required by law, the parent or person standing in parental relation commits an offense. The attendance officer shall file a complaint against him in the county court, in the justice court of his resident precinct, or in the municipal court of the municipality in which he resides. An offense under this section is punishable by a fine of not less than $5 nor more than $25 for the first

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offense, not less than $10 nor more than $50 for the second offense, and not less than $25 nor more than $100 for a subsequent offense. Each day the child remains out of school after the warning has been given or the child ordered to school by the juvenile court may constitute a separate offense.

Sec. 21.034. Reports

(a) The failure of any child within the compulsory attendance age to enroll in school shall be determined upon the basis of the reports prescribed by this section.

(b) The county superintendent of each county shall furnish to the superintendent of schools of each school district in the county, or to the principal in the event there be no superintendent, a complete list of all children belonging in the district as shown by the last scholastic census and the record to transfers to and from the district.

(c) Each superintendent or principal shall report to the county superintendent the names of all children subject to the provisions of this subchapter who have not enrolled in the school.

(d) The superintendent, principal, or other official of any private, denominational, or parochial school shall furnish the county superintendent a list of all children of scholastic age enrolled in the school and the district in which each child was enumerated in the public school census.

(e) From the lists supplied by the public school superintendents and principals and by the officials of any private, denominational, or parochial schools, the county superintendent shall compile a list for each district showing all children who are shown by the census to be of scholastic age but who have not enrolled in any school. The list for each district shall be furnished to the person or persons serving as attendance officer for the district. Sec. 21.039. Powers and Duties of Attendance Officers

(a) A school attendance officer shall have the following powers and duties:

. . . .

(3) to enforce the provisions of the compulsory attendance law;

. . . .

(6) to proceed in juvenile court against any incorrigible pupil, or against any recalcitrant person having parental control as provided in Section 4.25 of this code.

TEX. EDUC. CODE ANN. §§ 21.032(a), 21.033(a)(1), 21.034, 21.039(a)(3) & (6) (Vernon 1987) & § 4.25(a) (Vernon Supp. 1987) (footnote omitted).

The plaintiffs-appellees consist of four classes, defined as: (1) persons who have enrolled their school-aged children in private or parochial schools outside their homes, receiving the curricula and instruction of such schools in their homes; (2) persons who have established a private school in their homes; (3) entities which have established private or parochial schools where the students receive their curricula and instruction in their homes; and (4) entities which provide curricula and instruction for private schools in homes. Members of the first two classes will be referred to as "home school parents" or "parents" and the others will be called "home school providers" or "providers."

Appellees Gary W. Leeper and wife, Cheryl Leeper, of Arlington and Richard Wells and wife, Kay Wells, of El Paso are named plaintiffs and representatives of category (1) home school parents. Bruce Smythe and wife, Patricia Smythe, residing in Flint, Smith County; Calvin E. Minkler and wife, Wanda Minkler, of Arlington; Quinten T. Parten, Jr. and wife, Sandra Parten, of Arlington; Tony Martinez and wife, Suzanne Martinez, of Watauga; Charles Kent and wife, Corlee Kent, of Arlington; John W. Jackson, Jr. and wife, Helen Jackson, of Duncanville; and Michael R. Galbraith and wife, Sally K. Galbraith, of Houston are representatives of category (2) home school parents. An additional named plaintiff is Home School Legal Defense Association of Washington, D. C., a nonprofit corporation whose membership includes at lease 385 families in Texas whose children are enrolled in private schools receiving their curricula and instruction in their homes, some

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of whom reside in the Arlington Independent School District and in the Katy Independent School District.

Named plaintiffs and representatives of category (3) home school providers are: Calvert School, Incorporated of Baltimore, Maryland; First Baptist Academy of Dallas; Christian Liberty Academy Satellite Schools of Prospect Heights, Illinois; and American Christian Schools, Incorporated, of Colleyville, Tarrant County. Representative of category (4) home school providers is named plaintiff Reform Publications, Inc. d/b/a Basic Education, of Lewisville, Denton County. All curricula used by the home school parents and providers include a study of good citizenship as required by section 21.033(a)(1).1

Named defendants, representative of the class of school districts and school attendance officers, are: Arlington Independent School District and Max Kidd; Katy Independent School District and Helena Blackstock; and El Paso Independent School District and Charles F. Hart.

We briefly summarize that portion of the record germane to our threshold inquiry into the jurisdictional issue. At the turn of the century, only ten percent of the school-age children in Texas attended public schools with almost the entire balance being taught at home because there were few private academies and parochial schools in the state. In 1915, the first compulsory attendance law was passed. 2 Exempted was "[a]ny child in attendance upon a private or parochial school or who is being properly instructed by a private tutor." In 1923 the exemption was changed to add the language that now appears in section
21.033 requiring instruction in good citizenship and to delete the private tutor provisions. 3

The earliest expression regarding home education found in the records of the Texas Education Agency appears in a 1981 publication entitled House Bill 72 and Subsequent Educational Legislation: Comprehensive References and Explanations, which states that "educating a child at home is not the same as private school instruction and, therefore, not an acceptable substitute" and that "[c]orrespondence courses are not a legal substitute for attendance at a public or private school."

Approximately 150 prosecutions of parents under section 4.25 had been initiated at time of trial. Eighty cases had actually gone to trial. No case has been decided at the appellate level. In each prosecution, the position of the school district was that the home could not qualify as a private school no matter what education was taking place there. It was estimated that there were at time of trial from 10,000 to 15,000 Texas families teaching their children at home.

When this suit was filed in March 1985, all appellants took the position in their original answers that a school-age child could not be taught at home and be considered to be enrolled in a private school. However, on April 12, 1986, the State Board of Education formally requested the legislature at its 1987 regular session either to define the terms "private or parochial school" or to specifically authorize the Board to do so, and in the same document set forth its recommended guidelines to the school districts for utilization pending action by the legislature. The text of this resolution was part of the record below and in fact was quoted by the trial court in its judgment. No legislation resulted from the State School Board's request. 4 In the recommended

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guidelines, the terms were defined by the Board as:

(1) An entity that is accredited by an accrediting organization recognized by the Commissioner of Education, or

(2) An entity that meets the following criteria:

a. It instructs students in facilities that comply with applicable local fire and sanitation codes;

b. It has a written regular plan of instruction sufficient to meet basic student educational goals;

c. Its students shall annually be administered a recognized nationally norm-referenced standard achievement test. Evidence of such administration and the results thereof shall be furnished upon request to the attendance officer for the public school district in which the private or parochial school is located. The local school district may require that the next administration of such achievement test be by a qualified test administrator, or

(3) An entity that furnishes evidence satisfactory to the attendance officer of the school district in which the private or parochial school is located, that it meets the criteria required by the Commissioner of Education for an entity to be accredited by a recognized accrediting organization under (1) of this section.

Shortly after the guidelines were published, the Attorney General and Katy I. S. D. filed in this suit a motion to dismiss for mootness, averring most, if not all of the plaintiff class representatives met the minimum standards of the guidelines, and since the school districts would follow the guidelines it became speculative only that plaintiffs would be prosecuted. The motions to dismiss were overruled.

Subsequently, an "Agreed Interlocutory Judgment" was issued by which the court would declare that:

[A] school-aged child residing in the State of Texas who is regularly and diligently pursuing in the child's home a written curriculum following a regular plan of instruction designed to meet basic educational goals of reading, language arts, mathematics and a study of good citizenship, of either a private or parochial school in which the child is enrolled which exists apart from the child's home or that has been obtained from other sources is considered to be in attendance upon a private or parochial school within the meaning of the language of Section
21.033(a)(1) of the Texas Education Code.

Before a hearing could be had on that agreed motion for interlocutory declaratory judgment, it was determined that some of its language was subject to misinterpretation. A redraft of the judgment that would eliminate any misconstruction of the agreed interpretation failed to secure approval of the Board of Education, and the agreement disintegrated.

In its final judgment, the trial court found: that any prosecution initiated upon the interpretation of section 21.033(a)(1) by T. E. A. during the years 1981-1986 or pursuant to the State Board's guidelines of April 12, 1986, violates constitutional due process and equal protection rights; that the use of a home to teach school-age children is a private, noncommercial use of the home; that plaintiffs and the represented classes have no adequate remedy at law and will suffer irreparable injury; that the named plaintiffs and the classes they represent are entitled to a declaratory judgment interpreting the meaning of the language of section 21.033(a)(1) because of the differences in the interpretation of the statute and then declared:

[T]hat a school-age child residing in the State of Texas who is pursuing under the direction of a parent or parents or one standing in parental authority in or through the child's home in a bona fide (good faith, not a sham or subterfuge) manner a curriculum consisting of books, workbooks, other written materials, including that which appears on an electronic screen of either a computer or video tape monitor, or any combination of the preceding from either (1) of a private or parochial school which exists apart from the child's home or (2) which

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has been developed or obtained from any source, said curriculum designed to meet basic education goals of reading, spelling, grammar, mathematics and a study of good citizenship, is in attendance upon a private or parochial school within the meaning of Section 21.033(a)(1) of the Texas Education Code and exempt from the requirements of compulsory attendance at a public school.

It was further declared that the children of all of the named plaintiff home school parents, and any children pursuing the curricula of any of the named plaintiff home school providers, were in compliance with section 21.033(a)(1).

The judgment then permanently enjoined all school districts and attendance officers from initiating prosecutions under section 4.25 or section 51.03 of the Family Code based upon: (1) the Texas Education Agency 1981-1986 interpretation of section 21.033(a)(1); (2) the April 12, 1986, guidelines of the State Board of Education; or (3) any other attempt by the Board to define or regulate private or parochial schools.

Appellants' initial attack upon the judgment is the claim of error in granting civil declaratory and injunctive relief against a criminal statute. It is well established that the constitutionality or validity of a penal ordinance is a question ordinarily within the exclusive jurisdiction of courts exercising criminal jurisdiction, subject to the exception that courts of equity may enjoin the enforcement of a penal ordinance where the ordinance is unconstitutional and void, and its enforcement will result in irreparable injury to vested property rights. City of Fort Worth v. Craik, 411 S. W. 2d 541, 542 (Tex. 1967). See also Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S. W. 2d 891, 894 (Tex. 1970).

It has been argued that the Declaratory Judgment Act, formerly TEX. REV. CIV. STAT. ANN. art. 2524-1 (Vernon 1965) now codified at TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001 and following (Vernon 1986), granted an additional remedy to persons in a position similar to that of plaintiffs herein, so that the requirements for equitable relief are no longer applicable. Such contentions have been uniformly overruled. See Chevron Oil Co. v. City of El Paso, 537 S. W. 2d 472, 475
(Tex. Civ. App.— El Paso 1976, no writ); City of Amarillo v. Griggs Southwest Mortuary, 406 S. W. 2d 230, 233
(Tex. Civ. App.— Amarillo 1966, writ ref'd n. r. e.); Malone v. City of Houston, 278 S. W. 2d 204, 205
(Tex. Civ. App.— Galveston 1955, writ ref'd n. r. e.).

Appellees did not plead or prove that the penal statute in question is unconstitutional or otherwise void, nor have they shown that enforcement of the statute has, or will result in irreparable injury to their vested property rights. Thus, under Texas law, the trial court lacked jurisdiction to grant equitable relief or enter a declaratory judgment construing or interpreting the code provisions here in question. City of Fort Worth, 411 S. W. 2d at 542.

We now examine appellees' contention that 42 U. S. C. S. § 1983 provides a basis for the declaratory and injunctive relief afforded them. That portion of the United States Code, known as the Civil Rights Act of 1871, provides in part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Id.

It appears that a suit for damages, declaratory relief and injunction is encompassed within the terms of section 1983, and it has been held that state courts have concurrent jurisdiction over cases brought under its provisions. See Martinez v. California, 444 U. S. 277, 283, 100 S. Ct. 553, 558, 62 L. Ed. 2d 481, 488 (1980).

Appellant school districts argue, however, that the award of injunctive relief and attorneys' fees and expenses against them is barred by the doctrines of sovereign

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and governmental immunity. They point out that an independent school district has been declared to be an agency of the state, and as such, it is immune from liability in a suit sounding in tort, except for the limited waiver of immunity granted by the legislature as to causes of action arising from the use of motor-driven vehicles or motor-driven equipment. See Barr v. Bernhard, 562 S. W. 2d 844, 846 (Tex. 1978) and Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. §
101.021, 101.025, & 101.051 (Vernon 1986). Furthermore, it has been directly held that the state or its agency is immune from suit when the cause of action is based upon the Civil Rights Act of 1871. Bagg v. Univ. of Texas Medical Branch, 726 S. W. 2d 582, 585-86 (Tex. App.— Houston [14th Dist.] 1987, writ ref'd n. r. e.).

In spite of the characterization of a school district as an agency of the state by our supreme court in Barr, 562 S. W. 2d 844, such status is not recognized by the federal courts. In Lopez v. Houston Indep. School Dist., 817 F. 2d 351, 353 (5th Cir.
1987), the school district was declared to be a local governmental body, sufficiently distinct from the state to be outside the eleventh amendment and amenable to suit under the Civil Rights Act of 1871. Prior to the decision in Lopez, the U. S. Supreme Court had decided that local governing bodies and local officials sued in their official capacities may be sued directly in a federal court under section 1983 for monetary, declaratory, and injunctive relief where the action that is alleged to be unconstitutional implements a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Monell v. Dep't of Soc. Serv., 436 U. S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611, 635
(1978). Moreover, constitutional deprivations visited pursuant to governmental "custom" without formal approval are likewise actionable. Id. State courts which make themselves available for the enforcement of federal remedies must afford to the litigants the full benefit of federal law. See Garrett v. Moore-McCormack Co., 317 U. S. 239, 243, 63 S. Ct. 246, 250, 87 L. Ed.
239, 243 (1942). In light of the above authorities we are required to recognize the jurisdiction of a state court to entertain a direct suit against a school district and its school attendance officer under section 1983 and to provide legal, equitable or declaratory relief thereunder. Appellant school districts' and attendance officers' point of error six is overruled.

The state agencies involved in this case have not raised the issue of immunity as to them or their officials in a section 1983 action. However, the Texas Education Agency challenges the jurisdiction of the court to determine the validity or applicability of the Board of Education's guidelines, claiming exclusive venue for such action rests with the Travis County district courts by virtue of the Administrative Procedure and Texas Register Act, TEX. REV. CIV. STAT. ANN. art. 6252-13a (Vernon Supp.
1989). Claim is made that the guidelines issued by the board were adopted pursuant to the procedure for adoption of rules set out in section 5 of the Act, and that the following language of section 12 of the Act applies:

Sec. 12. The validity or applicability of any rule, including an emergency rule adopted under Section 5(d) of this Act, may be determined in an action for declaratory judgment in a district court of Travis County, and not elsewhere, if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency must be made a party to the action.

Id. at § 12.

In their brief, appellees neither acknowledge nor address the subject matter of this point of error. On the other hand, the T. E. A. fails to direct us to any proof in the record which shows that the Board's guidelines were "rules" adopted under the requirements of section 5 of the Act. That section requires notice of the intended rulemaking action to be filed with the Secretary of State, and published in the Texas Register. Id. at § 5(a). There are provisions also for submission of data, views,

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and arguments by all interested persons and for public hearings if twenty-five or more persons request them. Id. at § 5(c). Additionally, the agency, if requested to do so, shall issue a concise statement of the principal reasons for and against the rule's adoption, incorporating in the statement its reasons for overruling the considerations against its adoption. Id. And finally, the agency order adopting the rule must include a reasoned justification of the rule and a certification that the rule has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Id. at § 5(c-1)(1) & (3). It is then expressly provided that a rule, not adopted in substantial compliance with the section, is invalid. Id. at § 5(e). We hold that, in the absence of a showing that the guidelines here in question constitute a "rule" adopted in conformity with section 5 of the Act, the exclusive Travis County jurisdiction provision is not applicable. Texas Education Agency's point of error two is overruled.

T. E. A. claims that the finding of an equal protection violation was erroneous. When this suit was filed, State Board's guidelines refused to recognize any type of educational program in the home as a private or parochial school. The classifications targeted by this suit may be stated therefore as (1) any type of private or parochial home school and (2) any type of private or parochial campus school. Parents of children being educated in the former were subject to prosecution; parents of children being educated in the latter were not. Therein lay the classification attacked as failing to provide equal protection to parents of children in the home schooling classification.

We pause to set forth generally accepted guiding principles underlying an inquiry into the concept of equal protection as set out in Reed v. Reed, 404 U. S. 71, 75-76, 92 S. Ct. 251, 253-54, 30 L. Ed. 2d 225, 229 (1971).

In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U. S. 412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989 (1920).

Id. (citations omitted).

The specific question presented in this case, then, is whether a difference in the locus of a private educational enterprise bears a rational relationship to a state objective of compelling the education of its school-age children in private or parochial schools if they do not attend public schools. This is so because the characteristics, curriculum, teacher qualification, administration, operation, or effectiveness of any private school or parochial school are not subject to control or supervision by the Texas Education Agency since its statutory authority extends only to public education. See TEX. EDUC. CODE ANN. §
11.02(a) (Vernon 1991). Significantly, the Agency recognizes its lack of authority regarding private school education as formally stated in the following policy:

§ 65.2. Recognition for Compulsory Attendance A nonpublic school shall be recognized as satisfying the requirements of the compulsory attendance laws when the basis for instruction is the English language, and the instructional program includes a study of good citizenship.

Texas Educ. Agency, 19 TEX. ADMIN. CODE § 65.2 (West Sept. 15, 1988) (Recognition for Compulsory Attendance).

It becomes apparent, therefore, that the state agency could have no official knowledge of the exact nature of either a home private school or a traditional campus-type

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private school since neither were subject to state monitoring. Under those circumstances, it is obvious that the distinction was made on the sole basis of location within a home or outside the home. In its brief, T. E. A. makes no reference to evidence produced by it to justify that distinction.

We therefore hold that such ground of difference does not have a fair and substantial relation to the object sought, namely, the education of all school-age children in either a public school or a private or parochial school, with the result being that all parents of children receiving education in private or parochial schools were not treated alike under the policy in existence when this suit was filed, thus depriving home school parents of equal protection under the law.

T. E. A. argues that even if an equal protection problem formerly existed, it was resolved by the Board of Education's 1986 resolution, under which all of the named plaintiff home schools admittedly would qualify under the private or parochial school exemption. This argument is flawed by the fact that a resolution may be undone by a future resolution, and thus has no inherent permanency. Moreover, the resolution lacks any legal significance as a statement of general applicability since it was not adopted in conformity with the Administrative Procedure and Texas Register Act, TEX. REV. CIV. STAT. ANN. art.
6252-13a.

In view of our holding that plaintiff home school parents have established a section 1983 cause of action by showing a violation of the equal protection doctrine, we need not address their due process claim. T. E. A.'s point of error four and school districts' point of error three are overruled.

The school districts' attack upon the substance of the declaratory judgment is the subject of their point of error four. The districts state that the court erred because its definition of the term "in attendance upon a private or parochial school . . . is unsupported by legally or factually sufficient evidence." The salient features of the court's declaration are "a school-age child . . . who is pursuing under the direction of a parent . . . in or through the child's home in a bona fide . . . manner a curriculum . . . designed to meet basic education goals of reading, spelling, grammar, mathematics and a study of good citizenship, is in attendance upon a private or parochial school within the meaning of Section 21.033(a)(1)." The declaration is based upon the court's finding of fact number one, that in 1915, when the compulsory attendance statute was enacted, a school-age child who was being educated in his or her home using a curriculum designed to meet basic education goals of reading, spelling, grammar, mathematics, and civics (a study of good citizenship) was considered to be in a private school.

Dr. Raymond Moore, an expert called by appellees, testified that at the turn of the century less than ten percent of the school population in Texas was in public schools and that a child being taught at home was considered to be in a private school. He testified that a plan of home instructions designed to meet basic education goals of reading, spelling, grammar, mathematics, and study of good citizenship was considered a private school. He also testified that the 1910 Webster's unabridged dictionary defined "school" as a place for instruction in any branch of knowledge. Another expert, Dr. Samuel Blumenfeld, author of six books on education, testified that from 1900 to 1925 private education consisted of parochial schools, home schooling, and academies and that they addressed the basic subjects of reading, writing, arithmetic, and history.

Dr. Rousas John Rushdoony, author of more than thirty published books in the field of education, also testified that in the period from 1900 to 1925, education in the private sector included Catholic and Protestant schools, and family schools in which the basic subjects were reading, writing, spelling, grammar, arithmetic, and civics.

There is no evidence in the record suggesting that the curricula in use by the named plaintiff home school parents was not designed to meet basic education goals

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of reading, spelling, grammar, mathematics, and a study of good citizenship. Under the well-recognized standards of review of legal and factual insufficiency of evidence points, we hold that there is ample evidence to support the court's finding of facts upon which its declaratory judgment rests. The school districts' point of error four is overruled.

School districts' point of error five assails the granting of injunctive relief against a class of defendants in favor of plaintiff classes "because the evidence was legally and factually insufficient to establish the prerequisites for such class-wide injunctive relief." In addressing this point, we set out below the pertinent provisions of TEX. R. CIV. P. 42 entitled 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 or defenses 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. 5

. . . .

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision
(a) are satisfied, and in addition:

. . . .

(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. . . .

Id. Specifically singled out and questioned by the school districts are: Commonality of the parents' claims; typicality of the parents' claims; numerosity of the home school providers; commonality of the provider class; and the failure of the parents' class and school districts' class to meet the requirements of rule 42(b)(2).

In support of the claim regarding commonality the school districts argue "even if the named Plaintiff Parents succeeded in establishing that their own children are attending private schools, the record does not and could not establish that the children of the other putative class members are also attending school by any generalized proof. Such a determination could only be made by examination of the specific situation of each family." This contention seems to confuse membership in a class of plaintiffs with the nature of relief provided to a class. By its certification order, the court certified the named plaintiff parents "to bring this lawsuit on behalf of all persons who are teaching their children at home in the State of Texas." The commonality and typicality of interests of such a broad class could hardly be more evident— all of them were at risk of prosecution under the existing policy which declared their children could not be considered in attendance upon a private or parochial school. In granting relief to the class by declaring a home school is considered a private school under specific circumstances, the court was not required to identify and specify which members of the class would benefit from its judgment, but only to declare the rights of those who fit the benefitted category of home school parents. The discretion of the court to refine the characteristics of the class ultimately benefitted by its judgment is evident from the provisions of subsection (d) of rule 42 permitting the original class to be divided into subclasses.

There was testimony that over 2000 Texas students were enrolled in home schools of the Christian Liberty Academy studying a standard school curriculum including mathematics, English related classes including grammar and reading and a study of good citizenship. The Calvert School of Baltimore, Maryland, was supplying the curriculum for its home instruction department to 252 home school children in Texas and 4200 nationwide. The above testimony alone is sufficient to support the court's definition of characteristics common and

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typical to the class which it found entitled to declaratory and injunctive relief. Numerosity is also shown by such testimony.

As to typicality, it is urged that a claim of a party is typical if it arises from the same event or course of conduct that gives rise to the claims of other class members and is based on the same legal theory. It is further urged that a class representative must possess the same interests and suffer the same injury as the class members. We agree with those general statements regarding the typicality factor and find that they apply to the facts in this case. It was established that there were some eighty known instances of home school parent prosecutions based upon the guidelines that a home school could not be a private or parochial school. Those events give rise to the claims of all of the class of home school parents which are based upon the same legal theory, i. e., the rights of home school parents to equal protection were being violated. The class representatives possessed the same interests as the class members, that is to be free from unwarranted prosecution and the threat of such prosecution, and the injury suffered by the representatives and class members was identical.

The additional claim is made that there is insufficient evidence to support the classwide injunctive relief. The focus of this claim is that "[t]o proceed under 23(b)(2) against a class of defendants would constitute the plaintiffs as 'the party opposing the class,' and would create the anomalous situation in which the plaintiff's own actions or inactions could make injunctive relief against the defendants appropriate." The above language does, in fact, appear in Wiggins v. Enserch Exploration, Inc., 743 S. W. 2d 332, 337 (Tex. App.— Dallas 1987, writ dism'd w. o. j.) as a quotation from the opinion in Paxman v. Campbell, 612 F. 2d 848, 854 (4th Cir. 1980), cert. denied, 449 U. S. 1129, 101 S. Ct. 951, 67 L. Ed. 2d 117 (1981). In the same paragraph, the Wiggins court also wrote the following:

First, the language of 42(b)(2) can be read as providing that the "party opposing the class" must be the wrongdoer. If so, it would logically follow that the subsection is only available when relief is sought in favor of the class. See, e. g., Stewart v. Winter, 87 F. R. D. 760, 770 (N. D. Miss. 1980). Accordingly, some courts have held that certification of a defendant class is outside the scope of this subsection. See Wright, Miller & Kane at § 1775 n. 15 and cases cited thereunder. For example, the Fourth Circuit has held that (b)(2) is restricted to cases "when a class of plaintiffs seeks injunctive relief against a single defendant — the party opposing the class — who has acted on grounds generally applicable to the plaintiff class." Paxman v. Campbell, 612 F. 2d
848, 854 (4th Cir. 1980). . . .

Wiggins, 743 S. W. 2d at 337 (emphasis in original).

If the Wiggins interpretation of Paxman, to the effect that: (a) certification of a defendant class is outside the scope of rule
42(b)(2); and that (b) the rule6 is restricted to cases when a class of plaintiffs sues a single defendant, was valid at the time written, its validity is questionable at this time, in view of the Fourth Circuit Court's later expression in Bazemore v. Friday,
751 F. 2d 662, 669 (4th Cir. 1984) as follows:

In Paxman . . . we held that a class of defendants of 130 Virginia school boards was inappropriate when each was free to adopt maternity leave policies of entirely unknown differences or similarities, it being uncontradicted there was no statewide policy in force, centrally directed or otherwise. The Sixth Circuit followed Paxman in Thompson v. Board of Education, etc., 709 F. 2d 1200 (6th Cir. 1983) upon the same fact situation obtaining in Paxman. While these two cases were decided under a different part of the class action rule, the principle remains the same, that to have a proper class of

Page 54

defendants in a case such as this there must be either a statewide rule or practice so that relief is available if the rule or practice is invalid, or the adjudication with respect to a member of a defendant class must as a practical matter be dispositive of the interests of the other members of the class as provided in FRCP 23(b)(1)(B).

Id.

In light of the clarification of the Paxman holding, it appears that the instant case presents the very situation that brings it within the purview of federal rule 23(b)(2) in that here we have indeed a statewide policy towards plaintiff parents established by T. E. A., to which policy each school district and attendance officer is bound to adhere in their treatment of plaintiff parents. Accordingly, we do not find Wiggins to be a valid impediment to utilization of Texas rule 42(b)(2) in this case.

In so holding, we find support in several other federal cases. The first is Marcera v. Chinlund, 595 F. 2d 1231 (2nd Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U. S. 915, 99 S. Ct. 2833, 61 L. Ed. 2d 281 (1979). In Marcera, the court approved certification of a class of defendants under rule 23(b)(2) in an action by the inmate plaintiff class to enjoin a defendant class of forty-seven sheriffs to comply with a program of contract visitation for pretrial detainees. In doing so, the court wrote, "And although a literal reading of the rule might indicate otherwise . . . it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials." Id. at 1238. Cited in support of the above statement were several publications and cases including Washington v. Lee, 263 F. Supp. 327 (M. D. Ala. 1966), aff'd, 390 U. S. 333, 88 S. Ct. 994, 19 L. Ed. 2d 1212 (1968).

Washington was a case in which six persons — five blacks and a white— who were confined in either a state penal institution, a county jail, or a city jail, as representatives of a class, sought relief from racial discrimination. Defendants were a named sheriff, a named warden of a city jail, and the chief administrator of the Alabama Board of Corrections as representatives of the class of all sheriffs and wardens in the state of Alabama. As against the contention that the named defendants were not representative of all wardens, jailers, and sheriffs in the state and therefore the suit could not be maintained as a class action within the meaning of rule 23, the trial court held that if questions of law or fact are common to the named defendants and the class they represent, it is immaterial whether certain of the defendant class are not otherwise identically situated. In affirming the judgment, the United States Supreme Court wrote "[t]he State's contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case . . . are without merit." Washington,
390 U. S. at 333, 88 S. Ct. at 994.

Appellants bring to our attention another case in which the compulsory school attendance law of Missouri was challenged and the plaintiffs sought certification under federal rule 23(b)(2) of a defendant class made up of all juvenile officers, guardians ad litem appointed by juvenile courts, school officials, the Division of Family Service employees, and local law enforcement officers who are delegated power to investigate parents who choose to offer their children, at home, an education that is Christ-centered and based upon the Holy Bible. Ellis v. O'Hara, 105 F. R. D. 556 (E. D. Mo. 1985). The Ellis court wrote as follows:

This Court holds that the typicality requirement for the defendant class certification is lacking herein. Under the facts of the case, the various juvenile officers, for example, are responsible for performing their duties within their limited jurisdictions. Such juvenile officers are by no means responsible for investigating individuals outside of their jurisdiction. The same holds true for the other categories of defendants. In LaMar v. H & B Novelty & Loan Co., 489 F. 2d 461 (9th Cir. 1973), the court held that plaintiffs were not entitled to bring a class action against defendants with whom they had no dealing. Id. at 464. Likewise in Thillens, Inc. v. Community

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Currency Exchange Assoc. of Illinois, Inc., 97 F. R. D. 668, 675 (N. D. Ill. 1983), the court found that a defendant class was improper unless each named plaintiff had a claim against each defendant class member. See also In re Gap Store Securities Litigation, 79 F. R. D. 283, 293-95 (N. D. Cal. 1978). Plaintiffs have not even attempted to assert that the Bowles, for example, have a claim against each member of the defendant class. For this reason alone, plaintiffs have failed to establish each of the prerequisites necessary for certification of a defendants' class.

Id. at 563-64. Overlooked by the Ellis court is the recognition, in both LaMar and Thillens, that there is an exception to the rule that a defendant class is improper unless each named plaintiff has a claim against each defendant class member. Such exception is described in Thillens as follows:

The requirement that each named plaintiff must have a claim against each defendant may be waived where the defendant members are related by a conspiracy or "juridical link."

A "juridical link" is some legal relationship which relates all defendants in a way such that single resolution of the dispute is preferred to a multiplicity of similar actions.

Thillens, Inc. v. Com. Currency Exch. Ass'n, 97 F. R. D. 668, 675-76 (N. D. Ill. 1983). For examples of such juridical links, see Broughton v. Brewer, 298 F. Supp. 260 (N. D. Ala. 1969) (the Governor of Alabama, the Attorney General of Alabama, and various Mobile County and city officials); Samuel v. University of Pittsburgh, 56 F. R. D. 435 (W. D. Pa.
1972) (all state and state related universities and colleges in the Commonwealth of Pennsylvania similarly situated); and Washington, 263 F. Supp. 327 (Commissioners of Corrections, members of the Board of Corrections, all county sheriffs and wardens and jailers of city and town jails in the state). In the light of the above authorities we decline to follow the limited application of the rule in Ellis, and we hold the evidence sufficient to support the judgment against the defendant class in favor of the plaintiff class of home school parents.

The final contention of this point of error is directed at the providers class and asserts lack of evidence regarding numerosity and commonality to support a judgment for injunctive relief. This contention lacks merit because the only injunctive relief provided is aimed solely at unwarranted initiation of proceedings by school districts against the home school parents class. No injunctive relief was given to the providers. Point of error five is overruled.

It is next contended in the school districts' point of error seven that the trial court erred in awarding attorneys' fees and expenses to the plaintiffs as against the school district defendants pursuant to 42 U. S. C. S. § 1988 (1989),7 because plaintiffs did not establish by legally or factually sufficient evidence that the school district defendants had violated any of plaintiffs' federal civil rights. This contention is not sustainable in view of our earlier holding that initiation of prosecution of plaintiff parents violates the parents' equal protection rights by establishing an unreasonable and arbitrary classification of parents which is not rationally related to any state interest. It is urged, however, even if there has been an unconstitutional deprivation pursuant to an official policy or custom such policy or custom is that of T. E. A., a state agency, and not that of the school districts. More specifically, it is claimed, no evidence was presented and no finding made that the school districts did or could have enacted any policy on the subject and that the attendance officers looked to the interpretations of the T. E. A. in discharging

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their obligations pursuant to the compulsory attendance law. Cited for the school districts' proposition that "local School Districts are not responsible for any constitutional infirmities in the state's compulsory school attendance statutes or policies" is Fellowship Baptist Church v. Benton, 815 F. 2d 485, 499 (8th Cir. 1987). In that case, however, the school district was a prevailing defendant, and the issue was limited to the propriety of awarding attorneys' fees under section 1988 to a prevailing defendant upon a finding that the plaintiffs' action was frivolous, unreasonable or without foundation. In its discussion of the frivolousness issue, the Fellowship court wrote the following:

Moreover, we fail to see the necessity of joining a local school district as a party when the gravamen of plaintiffs' complaint, the relief they requested, and all of the arguments they presented to the district court and to this Court on appeal are directed solely to actions of the State of Iowa.

Id. Under these circumstances we find the above language of no precedential value in the context of our present inquiry. We do find, however, that the case of Familias Unidas v. Briscoe, 619 F. 2d 391 (5th Cir. 1980) is pertinent to whether the school districts have sole responsibility to pay attorneys' fees. That case arose out of efforts of Familias Unidas, a loosely structured organization of Mexican-American students and adults, to seek reform and to air grievances of the City of Hondo's Chicano community with respect to the operation of the Hondo public schools. After a student walk-out, planned and aided by several members of Familias Unidas, the Board of Trustees of the Hondo Independent School District filed suit to enjoin the continuation of the boycott. The Board also requested that Medina County Judge Jerome Decker invoke TEX. EDUC. CODE ANN. § 4.28 (Vernon 1972)8 to compel disclosure of the names of all of the officers and members of Familias Unidas, the organization known to be sponsoring the boycott. Judge Decker, in accordance with the authority given to him by the statute, called upon Irma Torrez, chairman of the organization to provide all of the statutory information to him for disclosure to the public. Torrez and Familias Unidas then filed suit in federal court under section 1983 against former Governor Briscoe, Judge Media, and the school district board of trustees. Torrez sought damages and both plaintiffs sought a declaration of unconstitutionality of the statute as in derogation of the first amendment guarantees of freedom of association. On appeal, the Fifth Circuit Court held the statute to be unconstitutional, and awarded only nominal damages to Torrez and costs and attorneys' fees to both plaintiffs. The court held that, although the doctrine of sovereign immunity and the protection of the eleventh amendment absolved the state from liability to pay damages, they did not stand as bars to the payment of attorneys' fees under section 1988, citing Hutto v. Finney, 437 U. S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). The court then stated the following:

Accordingly, Hondo Independent School District and the State of Texas will actually

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be responsible for plaintiffs' attorney's fees. Of course, since we have held Medina County not to be susceptible to this section 1983 suit under Monell— because Judge Decker's actions did not implement or constitute an official county policy— the county will share no responsibility for plaintiffs' fees and costs.

Familias Unidas, 619 F. 2d at 406. We are asked to favorably compare the position of the county and county judge in Familias with that of the school districts in the case before us and absolve the school districts from liability. This we cannot do because we interpret the Familias rationale to be that although the unconstitutional statute established a state policy, the state policy was implemented by the Hondo school districts' request to the county judge to carry out the policy. By analogy, where the T. E. A., a state agency, has adopted the unconstitutional policy as in this case, the school districts implemented the offending policy by requesting prosecution to carry out the policy. It is in this manner that the defendant school districts participated in the unconstitutional deprivation of plaintiff parents' rights and acquired liability for attorneys' fees when the plaintiffs became the "prevailing party" under section 1988. Point of error seven is overruled.

Appellant school districts next attack the award of attorneys' fees against them pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (Vernon 1986)9 because such award is not just and equitable. They point out that the statute is permissive only, and that even a losing party may be awarded such fees so long as the award is equitable and just. See District Judges v. Commissioners Court, 677 S. W. 2d 743, 746 (Tex. App.— Dallas 1984, writ ref'd n. r. e.). It is also pointed out that the focus of plaintiffs' complaints was on T. E. A. and not upon the school districts who were simply following T. E. A. guidelines as they were required to do, and further, that substantial school district funds had already been diverted from public education to legal defense fees and expenses. To require the school children and taxpayers of the school districts to undergo further loss, it is urged, would not be equitable or just.

Indicative of the specific posture of appellant school districts in the presentation of this point is the following language of their brief:

The trial court found that only the conduct of the Texas Education Agency was arbitrary, capricious, unreasonable, and amounted to bad faith and harassment (Findings of Fact Nos. 34-36, 18 Tr. 4520-21). No similar findings were made as to the School District Defendants. Requiring them to pay attorneys' fees clearly amounted to an abuse of discretion.

Although the above language approaches, it does not cross, the threshold of an assertion that it is unjust or inequitable to exclude T. E. A. from the burden of paying all or part of the attorneys' fees. Consequently, we are not called upon to address such issue. We hold that under these circumstances, the award of attorneys' fees and costs to appellee home school parents for securing redress of deprivation of constitutional rights, such fees and costs to be borne by the 1060 school districts, is equitable and just. Point of error eight is overruled.

Point of error nine contends that the award of $360,000 as attorneys' fees and expenses was error because the evidence is factually and legally insufficient to establish that "said amount is reasonable and necessary." It was agreed that each party's attorney could testify as to his fees without calling other experts. In fact, two attorneys' testimony in that regard was accepted in affidavit form. Post-trial affidavits were accepted to complete the evidence of fees earned up to the appeal of the case. Counsel for appellees testified at length and was extensively cross-examined

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regarding his activities and services from January 27, 1985, the date of his being retained, through January 13, 1987. He then introduced into evidence statements and over 350 itemized time sheets detailing time, services, and expenses. No objection was lodged regarding the nature or sufficiency of the proof made by appellees as to the matter of fees or expenses. The sum awarded is in accordance with the evidence presented. We conclude, from appellant school districts' argument under this point, that the point is not actually an evidence sufficiency point, but rather a three-pronged complaint directed at: (1) failure to segregate attorneys' fees and expenses as to claims and parties; (2) failure to eliminate time spent on noncompensable work; and (3) failure to eliminate expenses not recoverable as a matter of law.

As to (1) above, the holding in Flint & Assoc. v. Intercon-Pipe & Steel, 739 S. W. 2d 622 (Tex. App. — Dallas
1987, writ denied) is significant. There it was said as follows:

As a rule, in a case involving more than one claim, attorney fees can be awarded only for necessary legal services rendered in connection with the claims for which recovery is authorized. Int'l Sec. Life Ins. Co. v. Finck, 496 S. W. 2d 544, 546-547 (Tex. 1973). The party seeking attorney fees must present evidence of a reasonable fee for only those services necessarily rendered in connection with the claim for which recovery of attorney fees is authorized, segregated from those services rendered in connection with other claims. Id. A corollary to the rule is that the services for which reasonable fees may be awarded include those rendered in connection with all claims, even if recovery of attorney fees is not authorized for such claims, if they arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. Wilkins v. Bain, 615 S. W. 2d 314, 316 (Tex. Civ. App. — Dallas 1981, no writ); Williamson v. Tucker, 615 S. W. 2d
881 (Tex. Civ. App. — Dallas 1981, writ ref'd n. r. e.); Triland Inv. Group v. Warren, 742 S. W. 2d 18
(Tex. App.— Dallas 1987).

Id. at 624-25. In the case before us we hold the record establishes the applicability of the corollary above stated, since all of appellees' claims arose out of the same fact situation and were all interrelated. As to (2) and (3) above, the record shows cross-examination of appellees' attorney as to a number of purportedly noncompensable charges and nonrecoverable expenses, but in no instance was there an objection, motion to strike, or other action taken to present to the trial court any of the complaints now made on appeal. Under such circumstances any error in that regard was waived. Point of error nine is overruled. The court's failure to award attorneys' fees and expenses to the appellant school districts is the subject of their final point of error. Such purported error is predicated upon the claimed failure of appellees to establish a section 1983 cause of action. Having previously held to the contrary, we must overrule this point.
The judgment of the trial court is affirmed.
 
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1 All code references are to the Texas Education Code unless otherwise noted.

2 Act approved March 13, 1915, 34th Leg., R. S., ch. 49, § 2, 1915 Tex. Gen. Laws 92, 93.

3 Act approved March 23, 1923, 38th Leg., R. S., ch. 121, § 2, 1923 Tex. Gen. Laws 255, 255.

4 See however, Act approved June 14, 1989, 71st Leg., R. S., ch. 658, § 11, 1989 Tex. Gen. Laws 2165, 2168, amending § 4.25, Education Code
(Thwarting Compulsory Attendance Law) and other sections of the code for the following:

SECTION 11. Nothing in this Act applies to students in attendance upon a private or parochial school, which includes home schools, in accordance with Section 21.033, Education Code.

Id. (emphasis added). We find no place where the above provision is published as part of a Code or Statute.

5 These factors are generally called numerosity, commonality, typicality, and representation.

6 Federal Rules of Civil Procedure, rule 23(b)(2) is identical to Texas Rules of Civil Procedure, rule 42(b)(2).

7 Pertinent excerpts of section 1988 are the following:

Sec. 1988 Proceedings in vindication of civil rights; attorney's fees

In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980 and 1981 of the Revised Statutes [42 USCS secs. 1981-1983, 1985, 1986] . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. Id.

8 Sec. 4.28. Interference with the Peaceful Operation of the Public Schools

(a) In order to maintain law, peace, and order in the operation of the public schools without the use of military force, the county judge of each county in this state is authorized to require any organization, operating or functioning within the county and engaged in activities designed to hinder, harass, or interfere with the powers and duties of the State of Texas in controlling and operating its public schools to file with the county clerk, within seven days after such request is made, the following information, subscribed under oath before a notary public:

(1) the official name of the organization and list of members;

(2) the office, place of business, headquarters, or usual meeting place of the organization;

(3) the officers, agents, servants, employees, or representatives of the organization;

(4) the purpose or purposes of the organization; and

(5) a statement disclosing whether the organization is subordinate to a parent organization and, if so, the name of the parent organization.

. . . .

(c) The information filed pursuant to Subsection (a) of this section is hereby declared public and subject to the inspection of any interested party.

Id.

9 Sec. 37.009 Costs

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.

Id. "Chapter" refers to the Uniform Declaratory Judgment Act, Civil Practices and Remedies Code, ch. 37.