unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial.

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U.S. 1st Circuit Court of Appeals
US v GONZALEZ-GONZALEZ

United States Court of Appeals

For the First Circuit

____________________

No. 96-2280

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL GONZALEZ-GONZALEZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge ]

____________________

Before

Lynch, Circuit Judge ,

Coffin and Cyr, Senior Circuit Judges .

____________________

Laura H. Parsky , Trial Attorney, with whom John C. Keeney , Acting Assistant Attorney General, and Theresa M.B. Van Vliet , Chief of the Narcotics and Dangerous Drugs Section, Department of Justice, were on brief, for appellee.

Lawrence E. Besser for appellant.

Manuel Gonzalez-Gonzalez on brief pro se.

____________________

February 5, 1998
____________________

LYNCH, Circuit Judge . Manuel Gonzalez-Gonzalez was convicted of a major drug smuggling and money laundering conspiracy based in Puerto Rico. Gonzalez' defense at trial was that such a conspiracy did exist, but that he was not part of it. Gonzalez now argues through counsel that an admittedly improper definition of reasonable doubt argued by the prosecutor in closing requires a new trial, as does a jury instruction on the effect of a guilty plea by a co-defendant. Gonzalez also filed a brief pro se, arguing that the district court erred for other reasons in denying his motion for a new trial. We affirm.

I. Gonzalez was charged on November 2, 1994 with conspiracy to

possess with intent to distribute cocaine and marijuana, possession with

intent to distribute marijuana, possession with intent to distribute

cocaine, importation of marijuana and cocaine, and aiding and abetting in

the laundering of monetary instruments. After a nineteen-day trial, the

jury found Gonzalez guilty as charged. Gonzalez was sentenced on

September 20, 1996 to life imprisonment and was fined.


Because this appeal involves admittedly improper remarks by the prosecutor, and because the verdict could have been tainted by these remarks, we do not consider the facts in the light most favorable to the jury's verdict. Our description of the facts is "designed to provide a balanced picture of the evidence appropriate for determining whether the remarks were harmless or prejudicial." United States v. Hardy , 37 F.3d 753, 755 (1st Cir. 1994). See Arrieta-Agressot v. United States , 3 F.3d 525, 528 (1st Cir. 1993).

Several witnesses testified that they belonged to Gonzalez' drug smuggling and money laundering operation. This extensive testimonial evidence was corroborated by tape recorded conversations, surveillance photographs, passport entries, travel records, and telephone records. Ricardo Rivero ("Rivero") testified that Gonzalez recruited him to retrieve and repackage 900 pounds of marijuana imported from Colombia in 1991. Rivero testified that Gonzalez stored cocaine and marijuana at a house belonging to Manuel Garrido, which other witnesses, a co-defendant and an FBI agent, subsequently confirmed.

Gonzalez transported 125 kilograms of cocaine from Puerto Rico to New York for distribution with help from Rivero. Gonzalez also hired Roberto Garraton-Rivera and Alberto Maysonet to transport cocaine. Garraton testified that Gonzalez came to his house to deliver cocaine to Maysonet. Garraton and Maysonet traveled to New York in August of 1991 to deliver cocaine to Gonzalez. While in New York, Gonzalez instructed Ricardo on how to distribute the cocaine and resolved a dispute over payment for the drugs. After the success of this deal, Gonzalez purchased several cars before returning to Puerto Rico.

Witnesses described other drug transactions in 1992. Co-defendant Luz Marina-Giraldo testified that she helped Gonzalez import 6,500 pounds of marijuana into Puerto Rico. Gonzalez stored the marijuana at a stash house and sold it in Puerto Rico. Rivero also testified about that marijuana shipment. According to Rivero, Gonzalez supervised the unloading and transportation of the marijuana.

Both Rivero and Marina-Giraldo testified that Gonzalez was involved in transporting 300 kilograms of cocaine from St. Martin to Puerto Rico in 1992. These witnesses also testified about a major shipment of cocaine and marijuana Gonzalez had imported from Colombia to Puerto Rico in September of 1992. Part of this shipment was seized by the police.

Several witnesses testified that they helped Gonzalez' cousin, Augustin Rivero ("Augustin"), import 625 kilograms of cocaine in November of 1992. Ricardo Rivero testified that Gonzalez supplied a motor for a boat to help bring in the shipment. Roberto Sierra-Rivera, a paid informant, testified that Gonzalez provided surveillance for this shipment, which was later sold in Puerto Rico and New York. Sierra-Rivera testified that Gonzalez and Augustin agreed that each time one of them brought in a load of cocaine, the other would be given 10 kilograms of cocaine or $100,000. There was also testimony about later cocaine smuggling operations conducted by Gonzalez' cousin Augustin.

Angel Santiago-Mora, a cooperating witness, and Martin Suarez, an FBI agent, testified that Gonzalez and his associates often delivered money to them to be laundered. On several separate occasions Gonzalez delivered hundreds of thousands of dollars to them. Other people closely connected to Gonzalez also delivered substantial sums of money to be laundered.

The government also presented tape recordings of conversations between Gonzalez and his associates in which Gonzalez admitted his involvement in drug smuggling and distribution. This evidence was supplemented by tapes of Gonzalez' associates referring to Gonzalez' involvement in drug trafficking.

Gonzalez testified and denied it all.

II. Gonzalez argues that he was deprived of his Sixth Amendment

right to a jury trial because in the prosecutor's closing argument the

prosecutor said:


[Y]ou heard [defense counsel] say at the end of his argument, that there was reasonable doubt as to whether he was or was not and I am going to tell you something, you will listen to the instructions from the judge as to what reasonable doubt is -- it is something very simple. If in your mind you think that he was a member of the organization, and in your heart, you feel that he was a member of the organization, then he was a member of the organization, and you say so with your verdict. Don't let yourselves be confused by the definition of reasonable doubt.

The government appropriately concedes that the prosecutor's remarks incorrectly defined reasonable doubt. Because there was no objection to these remarks (which the defendant concedes), we apply a plain error standard of review. See United States v. Crochiere , 129 F.3d 233, 237 (1st Cir. 1997); United States v. Taylor , 54 F.3d 967, 972-73 (1st Cir. 1995). The "decision to correct the forfeited error [is] within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error 'seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.'" United States v. Olano , 507 U.S. 725, 732 (1993) (quoting United States v. Young , 470 U.S. 1, 15 (1985)).

Gonzalez relies on a series of cases holding that jury instructions which misstate the reasonable doubt standard require a new trial. He argues that the prosecutor's comments on reasonable doubt are the "functional equivalent" of jury instructions, especially since the prosecutor followed his incorrect definition with a statement that the jury should not be confused by the definition of reasonable doubt. Gonzalez argues that the prosecutor essentially told the jury to ignore the judge's instructions on reasonable doubt and to follow his "mind and heart" test instead. We start with the latter contention.

The remark, "Don't let yourselves be confused by the definition of reasonable doubt" is ambiguous, and could have at least three meanings. It could mean "Don't be confused by the definition that I, the prosecutor, have just told you." It could mean, "Don't be confused by the definition you hear from either lawyer." And it could mean, "Don't be confused by the definition you hear from the judge," with the implication that the prosecutor's definition governs.

In context, the third meaning is by far the least likely of the three. 1 The prosecutor prefaced his remarks by telling the jury to listen to the judge's instructions, and his statement that the jury should not be confused by the definition of reasonable doubt is subject to benign interpretation. Furthermore, the prosecutor concluded his argument by stating, "You will listen to the instructions of the Honorable Judge, as he explains them to you, you will decide what the facts in this case were [and] you will apply the law . . . ." The prosecutor's own comments went a long way toward curing any understanding of the comment as an admonition to ignore the court's instruction.

The problem with the prosecutor's error was obviated by the court's instructions on reasonable doubt, which Gonzalez concedes were correct, as well as the court's admonition to the jurors that instructions on the law come only from the court, and not from counsel.

We flatly reject Gonzalez' argument that a misstatement of the law by a prosecutor should be treated the same way as a misstatement of law by the judge. No juror would mistake a prosecutor for a judge. Our law assumes that the jurors follow jury instructions and thus that they followed the judge's, not counsel's, definition of reasonable doubt. See United States v. Rivera-Gomez , 67 F.3d 993, 999 (1st Cir. 1995) ("[O]ur system of trial by jury is premised on the assumption that jurors will scrupulously follow the court's instructions."); Refuse & Envtl. Sys., Inc. v. Industrial Serv. of Am., Inc. , 932 F.2d 37, 40 (1st Cir. 1991) ("A basic premise of our jury system is that the jury follows the court's instructions."). That assumption is especially so here, since the prosecutor also told the jury to listen to the judge.

Whether the prosecutor's remarks amount to plain error warranting a new trial depends on analysis of several factors: "(1) the extent to which the conduct is recurrent and/or deliberate; (2) the extent to which the trial judge's instructions insulated the jury against, or palliated, the possibility of unfair prejudice; and (3) the overall strength of the prosecution's case, with particular regard to the likelihood that any prejudice might have affected the jury's judgment." Taylor , 54 F.3d at 977.

We make no determination on the first of the Taylor factors. We do note a long history of improper statements in closing argument from federal prosecutors in Puerto Rico. See, e.g. , United States v. Rodriguez- Carmona , 111 F.3d 122, 1997 WL 157738, at *4 (1st Cir. 1997); United States v. Fernandez , 94 F.3d 640, 1996 WL 469009, at *17 (1st Cir. 1996); United States v. Cartagena-Carrasquillo , 70 F.3d 706, 713 (1st Cir. 1995); United States v. Levy-Cordero , 67 F.3d 1002, 1009 (1st Cir. 1995); Arrieta-Agressot , 3 F.3d at 527 (citing cases); United States v. Ortiz- Arrigoita , 996 F.2d 436, 441 (1st Cir. 1993) ("We do not understand, however, why after numerous warnings from this court, the prosecuting attorneys in the District of Puerto Rico persist in spiking their arguments with comments that put their cases at risk.") (collecting cases). In light of this history, the government gains no advantage under the first factor.

As to the second factor, we are persuaded the jury was not led astray. That is because of the court's concededly correct jury instructions on reasonable doubt and the direction to disregard statements about the law from counsel. As to the third factor, the government had a very strong case against Gonzalez. Given these considerations, we do not think the jury's judgment was affected and a new trial is not warranted. Cf. Levy- Cordero , 67 F.3d at 1008 (holding that several "obviously improper" prosecutorial comments did not warrant a new trial).

III. In his counselled appeal, Gonzalez says the district court

committed error in its jury instructions regarding the guilty plea of co-

defendant Luz Marina-Giraldo.



2

Specifically, Gonzalez argues

that the court's statement that his co-defendant's guilty plea is not "in

and of itself" proof of Gonzalez' guilt implies that the plea could be

considered as evidence of guilt in conjunction with other evidence in the

case. There was no objection to these instructions, so we apply the

plain error standard of review (which Gonzalez concedes).
See

Taylor
, 54

F.3d at 976;
United States
v.
Colon-Pagan
, 1 F.3d 80, 81 (1st Cir. 1993).


The phrase "in and of itself," in isolation, could be understood to mean what Gonzalez posits: that standing alone, the guilty plea of a co- defendant could not be evidence of guilt of the defendant, but, in combination with such other evidence, the plea could be taken as evidence of the defendant's guilt. That is, of course, not the law, nor, we are sure, was that the trial judge's intended meaning when he gave the instructions.

The trial judge may have relied on dicta in United States v. Rivera- Santiago , 872 F.2d 1073, 1083 (1st Cir.), cert. denied , 492 U.S. 910 (1989), and cert. denied , 493 U.S. 832 (1989). In describing the events at the trial, this court's opinion referred to the following language given by the trial judge as a "standard accomplice" instruction: "the fact that an accomplice has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other person." The language of the instruction itself was not at issue in Rivera-Santiago 3 and this Court has not ruled on the propriety of such language in an accomplice instruction. We do so now and discourage the use of such "in and of itself" language. There is no need for such language, as the pattern jury instructions from other jurisdictions make evident. 4

Despite the potentially misleading nature of the "in and of itself" language, a new trial is not warranted here. The district court instructions, taken as a whole, repeatedly and unequivocally told the jury not to consider the co-defendant's guilty plea as evidence of the defendant's guilt. 5

We examine jury instructions in the context of the charge as a whole to determine whether the court's instructions require a new trial. See United States v. Rose , 104 F.3d 1408, 1416 (1st Cir. 1997). When we take this context into account, it is apparent that the court's instructions in this case do not warrant a new trial. We also reject Gonzalez' claim that the synergistic effect of two errors requires a new trial.

IV. In his pro se brief, Gonzalez argues that the district court

erred in denying his motion for a new trial.



6

The motion

based the request for a new trial on claimed newly discovered evidence

and claimed prosecutorial misconduct, including presentation of false

testimony.



7



We review a trial judge's ruling on a motion for a new trial for manifest abuse of discretion. See United States v. Brimage , 115 F.3d 73, 79 (1st Cir. 1997). "The remedy of a new trial is rarely used; it is warranted 'only where there would be a miscarriage of justice' or 'where the evidence preponderates heavily against the verdict.'" United States v. Andrade , 94 F.3d 9, 14 (1st Cir. 1996) (quoting United States v. Indelicato , 611 F.2d 376, 386 (1st Cir. 1979)). See United States v. Montilla-Rivera , 115 F.3d 1060 (1st Cir. 1997). In a motion for a new trial based upon newly discovered evidence, the defendant must establish that "the evidence was: (i) unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial." United States v. Tibolt , 72 F.3d 965, 971 (1st Cir. 1995). But Gonzalez' complaints are largely about what happened at trial and were not newly discovered.

The district court gave a careful explanation of its denial of Gonzalez' motion, and we affirm for the reasons stated in the court's Memorandum and Order dated December 3, 1996. We add only that the "new evidence" Gonzalez presents does not come close to "so undermin[ing] the government's case as to give rise to a 'reasonable' probability of acquittal on retrial." Tibolt , 72 F.3d at 972 (quoting Sepulveda , 15 F.3d at 1220)).

The judgment is affirmed.

FOOTNOTES

--------------
[1]

We note but need not resort to the rule that when a prosecutor's comments are ambiguous, and there is no contemporaneous objection, the ambiguity is construed in favor of a proper meaning. See Taylor , 54 F.3d at 979 ("[W]hen the target of the comments does not interrupt and register a timely objection, it seems especially appropriate to 'give the arguer the benefit of every plausible interpretation of her words.' . . . Given the absence of a contemporaneous objection, we must cede to the government the benefit of a legitimate, plausible interpretation of the prosecutor's words.") (quoting United States v. Sepulveda , 15 F.3d 1161, 1187 (1st Cir. 1993)).

--------------
[2]

Before Marina-Giraldo testified as a witness, the court instructed the jury:

[T]he government must establish each case against each defendant separately. Now, the fact that this co-defendant is going to testify, you are going to hear from her that she did enter a plea of guilty and now she is testifying for the government. Now the fact that a co-defendant has entered a plea of guilty to the offense charged, that fact also, the entering of a plea of guilty in and of itself is not evidence of any guilt of any other of the co-defendants. I repeat that. The fact that a co-defendant has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other co-defendant and I cannot emphasize that enough.

The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the other defendant's guilt nor may you draw any inference of guilt as to the remaining co- defendants. The fact that she pled is what I am talking about, that cannot be used as evidence against the other defendants nor may you draw any inference from the fact that she pled guilty. . . .

[W]hat you cannot consider is the fact that she has entered a plea of guilty, that fact cannot be considered. It is not evidence against the other defendants and affords no inference or suggestion of guilt as to the other defendants.

--------------
[3]

The Fifth Circuit also described a similar "in and of itself" accomplice instruction in United States v. Abravaya , 616 F.2d 250 (5th Cir. 1980). The new District Court Criminal Law Pattern Jury Instructions for this circuit do not address guilty pleas by accomplices or co-defendants.

--------------
[4]

The pattern instructions of other circuits are more straightforward and do not contain "in and of itself" language. For example, Sixth Circuit pattern jury instruction 7.08 reads as follows:

(3) The fact that ________ has pleaded guilty to a crime is not evidence that the defendant is guilty, and you cannot consider this against the defendant in any way .

The Seventh Circuit's pattern jury instruction 3.23 reads:

The witness, ________, has pleaded guilty to a crime arising out of the same occurrence for which the defendant is now on trial. You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care. Moreover, his guilty plea is not to be considered as evidence against the defendant .

Pattern jury instruction 2.19 from the Eighth Circuit states:

You have heard evidence that witness (name) has pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt . You may consider that witness' guilty plea only for the purpose of determining how much, if at all, to rely upon that witness' testimony.

Finally, Ninth Circuit pattern instruction 4.12 reads:

The witness, _________, has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant and you may consider it only in determining this witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves .

--------------
[5]

The court also instructed the jury:

Now, the case against Luz Marina-Giraldo has been disposed of and will no longer be before you. It is very important that you realize that you cannot guess or concern yourselves or speculate as to the reason for the disposition of her case. The disposition cannot and should not influence your verdict with reference to the remaining defendants that are on trial here.

If you recall, I think I advised you on the first day that each defendant, although being tried together, has a right to have the jury consider his case separately of the other defendants and considering the evidence that applies or that is admitted as to that defendant specifically. . . . [A]lthough [the defendants] are being tried together, you must give separate consideration to each defendant. . . . I repeat that you cannot and you must not consider the fact that Luz Marina-Giraldo is not here again and it should not enter into your deliberations. . . . [The disposition of her case] should not enter whatsoever in your deliberations as to the other two defendants.

In its final instructions to the jury, the court said:

[D]uring the course of the trial, I instructed you that the case against Luz Marina-Giraldo . . . [had] been disposed of, and was no longer before you. And the disposition of the case[] . . . should not influence your verdict with reference to . . . Gonzalez and you must base your verdict solely on the evidence against Mr. Gonzalez-Gonzalez. In other words, the government must establish its case against Mr. Gonzalez separately of the disposition of the cases against the other two defendants.

And I also instructed you, the fact that co-defendant Luz Marina- Giraldo entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of the defendant here on trial and I cannot emphasize this enough. The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the guilt [of] Mr. Gonzalez-Gonzalez. Nonetheless, you may give her testimony such weight as you think it deserves, keeping in mind that it must be considered with caution and great care.

--------------
[6]

After oral argument in this case, Gonzalez filed a letter with this court, which we accepted as a supplemental brief, raising issues in addition to those raised by his able counsel. We requested the government to file a responsive brief, which it has done. We reach the merits of Gonzalez' pro se appeal.

--------------
[7]

Gonzalez also complains of a factual error concerning whether the name "Lin" appeared on any of the drug packages from Loiza beach, an error contained in the transcript. At oral argument before us, the government conceded this factual error, saying the name did not appear.

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Former Judge Charles F. Baird sitting by assignment.Judgment rendered and Opinion filed March 30, 2000.Justices Edelman, Wittig and Baird.

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Page 1
Affirmed and Opinion filed March 30, 2000.
In The
Fourteenth Court of Appeals
____________
NO. 14-98-00201-CR
____________
HENRY ANTONIO MORA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal from the 232
nd
District Court
Harris County, Texas
Trial Court Cause No.
757,522
O P I N I O N
Appellant was charged by indictment with the offense of aggravated robbery. The
indictment also alleged a prior felony conviction for the purpose of enhancing the range of
punishment. A jury convicted appellant of the charged offense. Appellant then pled true to
the enhancement allegation and the trial court assessed punishment at 75 years confinement
in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six
points of error. We affirm.
Page 2
2
I. Sufficiency Challenges
The first point of error contends the evidence is legally insufficient to sustain the
conviction. The third point of error contends the trial court erred in denying appellant’s
motion for instructed verdict. The fourth point of error contends the evidence is factually
insufficient because the evidence is insufficient to corroborate the accomplice witness
testimony. To address these points, a comprehensive review of the evidence is necessary.
A. Factual Summary
Ememeleina Arhaja, the wife of the complainant, testified that on the alleged date she
and the complainant had just cashed a check and were waiting at a bus stop. Arhaja noticed
two men who appeared suspicious, therefore, Arhaja and the complainant moved to a
different bus stop. The two men re-appeared at the second bus stop and robbed the
complainant, taking his wallet and a necklace. The robbers also took a chain from Arhaja.
To facilitate the robbery, appellant’s co-defendant displayed a firearm and used it to strike
the complainant. After the attack, the complainant ran to a store and Arhaja chased after the
robbers. Arhaja saw the robbers enter a car, which was occupied by two females, and flee.
Arhaja got a partial license plate number from the vehicle. Arhaja identified appellant’s co-
defendant from a photo spread, a video line-up and in court. Arhaja identified appellant from
a line-up, but was not able to identify appellant in court.
The complainant, Geronimo Perez, testified that he moved from the first to the second
bus stop because of two men who appeared suspicious. After arriving at the second bus stop,
the two men surprised the complainant when they used a firearm to strike the complainant
in the head, grabbed his wallet and took his chain necklace. The necklace bore the
complainant’s name.
The complainant identified appellant’s co-defendant as the individual
wielding the firearm. The complainant identified appellant in court.
Houston Police Department Officer Juan Huezoh was the first officer on the scene.
Page 3
3
He separated Arhaja and the complainant, took their descriptions of the robbers and got a
partial license plate number from Arhaja.
Houston Police Officer Cheryl Clement heard the broadcast regarding the description
of the vehicle and a partial license plate number. Shortly thereafter, Clement noticed a
vehicle fitting the description in a parking lot about three quarters of a mile from the site of
the robbery. Clement saw two black males and one black female standing near the car. The
vehicle was later moved and abandoned. Clement contacted the robbery division to get a
“hold” on the vehicle, meaning the car could be towed because there was reason to believe
it had been involved in the robbery.
The vehicle was towed to the Houston Police
Department storage lot for further investigation.
Subsequent to the impounding of the
vehicle, Arhaja went to the storage lot and identified the towed vehicle as the one she had
seen the two suspects enter when they fled the scene.
After running the license plate, the police went to an apartment complex and received
the names of Tazzie Gray, Daisy Gray, Nico Gray, and Alvaro Gomez. A photo spread was
prepared with the photo of Alvaro Gomez, also known as Orobio Gamboa Quintilliano,
appellant’s co-defendant. Both the complainant and Arhaja identified the co-defendant. An
arrest warrant was issued for the co-defendant and he was subsequently arrested along with
Tazzie Gray. The co-defendant subsequently gave a video taped statement concerning his
participation in the robbery.
The investigation then led Clement to Darlene Cheeks. After Cheeks was arrested,
and provided Clement with the name of appellant, Cheek’s boyfriend, Clement then arrested
appellant.
Clement later placed appellant and his co-defendant in separate line-ups and video-
taped them. Both line-ups were shown to the complainant and Arhaja. Both identified the
co-defendant.
Arhaja was able to identify appellant from a video line-up, but the
complainant was not.
Cheeks directed Clement to a firearm hidden in the impounded
Page 4
1
Two firearms were admitted into evidence. The firearm recovered from Gray was State’s exhibit
10 and the firearm recovered from the impounded vehicle was State’s exhibit 11. The admission of these
exhibits is the subject of part III of the opinion, infra.
4
vehicle. A firearm was also recovered from the apartment of Tazzie Gray when she was
arrested.
1
Jesus Chagoyenn, a goldsmith who owned a jewelry shop, identified appellant and his
co-defendant as the men from whom Chagoyenn purchased a chain and a ring, which he later
melted down. Chagoyenn testified he did not normally buy jewelry, but the two men stated
they needed money for gas.
Darlene Cheeks testified as an accomplice. In exchange for her testimony, she agreed
to plead guilty to several pending aggravated robberies and the State agreed the charges
would be reduced to robbery and she would be sentenced to eight years concurrent for all
cases.
Cheeks stated she had been romantically involved with appellant and she was
acquainted with the co-defendant who was the boyfriend of Tazzie Gray.
On May 4, 1997, the four went looking for someone to rob. They went to a
convenience store, which Gray entered, and saw the complainant and Arhaja cashing a check.
They followed the complainant and Arhaja to a bus stop. The two men got out of the car
while Cheeks and Gray remained in the car. After five or ten minutes, the men returned with
a wallet, a necklace and a ring. Cheeks testified the firearm used was State’s exhibit 11.
Cheeks also pointed out the jewelry store on Chimney Rock where the items had been sold.
Houston Police Officer A.A. Cavasos assisted with the investigation of the robbery.
He testified Chagoyenn told him that the chain he bought and subsequently melted down
bore the moniker of “Geronimo,” the first name of the complainant. Chagoyenn testified at
trial he did not remember that, nor did he remember telling the officer that.
Appellant’s co-defendant testified that he did not commit the robbery. Although the
co-defendant had earlier given a video-taped statement confessing to the robbery, he testified
Page 5
5
that he had smoked marijuana and crack cocaine the morning of the statement and that he
was forced to give the statement.
B. Standards of Review
We must next determine the appropriate standard of appellate review for resolving
these points of error. When we are asked to determine whether the evidence is legally
sufficient to sustain a conviction we employ the standard of Jackson v. Virginia and ask
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
In Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993), the Court of Criminal
Appeals stated: “A challenge to the trial court's ruling on a motion for an instructed verdict
is in actuality a challenge to the sufficiency of the evidence to support the conviction.”
Therefore, when considering a point of error contending the trial court erred in overruling
a motion for instructed verdict, the reviewing court “will consider the evidence presented at
trial by both the State and appellant in determining whether there was sufficient evidence.”
Id. In other words, the standard of appellate review of a ruling on a motion for instructed
verdict is the same standard in reviewing legal sufficiency of the evidence. See Margraves
v. State, 996 S.W.2d 290, 302 (Tex. App.—Houston [14
th
Dist.] 1999, pet. ref’d) (citing
Roper v. State, 917 S.W.2d 128, 130 (Tex. App.—Fort Worth 1996, pet. ref'd); Griffin v.
State, 936 S.W.2d 353, 356 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).
When we determine whether the evidence is factually sufficient, we employ the
standard announced in Clewis v. State and view all of the evidence without the prism of “in
the light most favorable to the prosecution” and reverse the conviction only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust. 922 S.W.2d
126, 129 (Tex. Crim. App. 1996). In Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997),
the court stressed the importance of the three principles that must guide a court of appeals
Page 6
6
when conducting a factual sufficiency review. The first principle is deference to the jury. A
court of appeals may not reverse a jury’s decision simply because it disagrees with the result.
Rather the court of appeals must defer to the jury and may find the evidence factually
insufficient only where necessary to prevent manifest injustice. See id. at 407. The second
principle requires the court of appeals to provide a detailed explanation supporting its finding
of factual insufficiency by clearly stating why the conviction is manifestly unjust, shocks the
conscience or clearly demonstrates bias, and the court should state in what regard the
contrary evidence greatly outweighs the evidence in support of the verdict. See id. at 407.
The third principle requires the court of appeals to review all of the evidence. The court must
consider the evidence as a whole, not viewing it in the light most favorable to either party.
See id. at 408.
C. Legal Sufficiency
As the standard of appellate review is the same, we will jointly consider the first and
third points of error.
A person commits aggravated robbery if he knowingly and
intentionally threatens or places another in fear of imminent bodily injury or death in the
course of committing theft, with the intent to obtain or maintain control of the property, and
uses or exhibits a deadly weapon. See T
EX
.P
EN
.C
ODE
§29.03.
From the facts presented, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Both the complainant and Arhaja identified appellant, and
Cheeks further testified appellant had been involved in the commission of the crime.
Although appellant contends the identification by the complainant and Arhaja is infirm, the
jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight
to be given to the testimony. See T
EX
. C
ODE
C
RIM
. P
ROC
. art. 38.04. The jury may believe
or disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159
Page 7
7
(1988). The jury could rationally have believed the testimony of the complainant and Arhaja
in determining beyond a reasonable doubt that appellant was guilty of aggravated robbery.
The complainant was severely beaten and stated he feared for his life, recounting that when
the firearm was placed on his stomach, he “felt death.” The complainant’s money and
jewelry were taken without his consent. The evidence is legally sufficient to sustain the
conviction. The first and third points of error are overruled.
D. Factual Sufficiency
We now turn to the factual sufficiency challenge. Clewis directs us to set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Clewis, 922 S.W.2d at 129. When performing this review, the
appellate court must be "appropriately deferential" to avoid substituting its judgment for the
fact finder's. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis,
922 S.W.2d at 133. This requirement was reiterated in Cain’s instruction for us to defer to
the jury. 958 S.W.2d at 407.
Appellant was positively identified by both the complainant and Arhaja. He was
dating Cheeks, who admitted her involvement in the instant crime. The jeweler identified
appellant as one of two men selling him a chain and a ring, exactly the items Cheeks testified
were taken during the robbery. The test for factual sufficiency is whether the jury finding
of guilt was “so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust." Clewis, 922 S.W.2d at 129. Under this standard, we cannot conclude that in
light of the foregoing record evidence, the finding of guilt was clearly wrong or unjust.
Consequently, we hold the evidence is factually sufficient to support the jury’s verdict. The
fourth point of error is overruled.
II. Accomplice Witness Corroboration
The second point of error contends the “conviction for aggravated robbery is void
Page 8
8
because it was had upon accomplice witness testimony that was not corroborated at trial by
other evidence that tended to connect appellant to the crime[.]” The Texas Code of Criminal
procedure provides:
A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows
the commission of an offense.
T
EX
. C
ODE
C
RIM
. P
ROC
. art. 38.14. An accomplice witness is a discredited witness because
his or her testimony alone cannot furnish the basis for the conviction; no matter how
complete a case may be made out by an accomplice witness or witnesses, a conviction is not
permitted unless he or they are corroborated. See Walker v. State, 615 S.W.2d 728, 731
(Tex. Crim. App. 1981).
The test for weighing the sufficiency of corroborative evidence is to eliminate from
consideration the testimony of the accomplice witness and then examine the testimony of
other witnesses to ascertain if there is evidence which tends to connect the accused with the
commission of the offense. See Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988).
If the testimony of Cheeks is eliminated, the identification of appellant as the robber
by both the complainant and Arhaja stands as the non-accomplice testimony against
appellant. The jury may believe or disbelieve all or any part of a witness's testimony. See
Sharp, 707 S.W.2d at 614. Arhaja’s eyewitness account and subsequent identification of
appellant as one of the robbers is sufficient evidence to connect appellant with the
commission of the instant offense. Point of error number two is overruled.
III. The Handguns
Points of error five and six contend the trial court erred in admitting into evidence
State’s exhibits 10 and 11, two different firearms, where the evidence showed that only one
firearm was used in the commission of the offense, because such evidence was not
Page 9
9
admissible under Texas Rules of Evidence 401, 402, or 403.
A. Preservation of Error
The State responds the error, if any, has been waived because appellant did not object,
thereby waiving any error, and further, the exhibits were never admitted into evidence. The
record belies these propositions. At trial, the following colloquy occurred:
The State: I would offer into evidence Judge State’s Exhibit Number
10 and State’s Exhibit Number 11. Let the record reflect that I’m tendering to
opposing counsel.
Mr. Alexander (counsel for co-defendant): That’s all right. Judge I
have the same objection as to 11 hadn’t been tied in, no predicate, no
relevance. At this point and time it’s prejudicial. It’s a gun waving at this
point. Judge I object to that.
The State: May I respond?
The Court: Mr. Gonzalez
Mr. Gonzalez (counsel for appellant): I’ll adopt his objection your
honor.
The Court: Let the record show. What says the State?
The State: Well the complainants have both stated that it was a black
gun with a longer barrel and it was a revolver. I’ve given the choice to the
complainants. They’ve looked at the gun and pointed it out. I believe I can
further in evidence –
The Court: That’s sufficient Counsel.
They’re both received and
admitted into evidence. State’s exhibit 10 and 11. (emphasis supplied)
Page 10
10
The record establishes the firearms were admitted into evidence and that appellant objected
to their admission. Therefore, the error, if any, has been preserved for appellate review.
B. Admissibility
Cheeks provided the police with State’s exhibit 11, which was hidden in the car
identified by Arhaja as the vehicle into which she saw the two suspects escape. Cheeks
stated State’s exhibit 11 was the firearm used in the commission of the offense.
Rule 401 defines relevancy for purposes of admission or exclusion under Rule 402.
“Relevant evidence” means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence. Rule 402 provides that “all relevant evidence is
admissible, except as otherwise provided by Constitution, by statute, by these rules, or by
other rules prescribed pursuant to statutory authority.
Evidence which is not relevant is
inadmissible.”
Evidence tending to affect the probability of the truth or falsity of a fact in issue is
logically relevant. See Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App.
1991)(on rehearing). The court has broad discretion in determining the admissibility of
evidence, and its ruling will not be disturbed on appeal absent a clear abuse of discretion. See
Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
State’s exhibit 11 was identified as the firearm used in the robbery; therefore it is
directly relevant to the instant offense. Although appellant contends the State failed to show
this was the “robbery gun,” this does not affect the admissibility. Even if it was not the
robbery firearm, the introduction of a weapon submitted as being similar to the one used in
the commission of the crime is admissible as demonstrative evidence to aid the jury in
understanding oral testimony adduced at trial. See Simmons v. State, 622 S.W.2d 111,
113-14 (Tex. Crim. App. [Panel op.] 1981); Fletcher v. State, 902 S.W.2d 165, 167 (Tex.
Page 11
2
Texas Rule of Evidence 403 is essentially the same as its federal counterpart. Texas Rules of
Evidence Handbook 213 (3d ed. 1998).
11
App.—Houston [1st Dist.] 1995, pet. ref'd); Jackson v. State, 772 S.W.2d 459, 466 (Tex.
App.—Beaumont 1989, no pet.).
It is within the trial court's discretion to admit into
evidence a type of weapon or instrument similar to that used in the commission of an offense.
Simmons, 622 S.W.2d at 113. Therefore, State’s exhibit 11 was admissible under Rules 401
and 402.
C. Rule 403
The Court of Criminal Appeals favors “admission of relevant evidence and implies
a presumption that relevant evidence will be more probative than prejudicial.” See generally
T
EX
. R. E
VID
. 403. In Brimage v. State, 918 S.W.2d 466, 505 (Tex. Crim. App. 1994), cert.
denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 66 (1996), the Court of Criminal Appeals
held relevant evidence, which is not inflammatory or prejudicial and assists the jury in
deciding a case is admissible. The court has also held that Rule 403 requires exclusion of
evidence only when there exists a clear disparity between the degree of prejudice of the
offered evidence and its probative value. See Joiner v. State, 825 S.W.2d 701, 708 (Tex.
Crim. App.1992) and Brimage, 918 S.W.2d at 506.
In Old Chief v. United States, 117 S.Ct. 644, 650 (1997), the Court considered the
admissibility of evidence under Rule 403:
2
The principal issue is the scope of a trial judge's discretion under Rule 403,
which authorizes exclusion of relevant evidence when its "probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." F
ED
. R. E
VID
. 403. Old
Chief relies on the danger of unfair prejudice.
The term "unfair prejudice," as to a criminal defendant, speaks to
the capacity of some concededly relevant evidence to lure the factfinder
into declaring guilt on a ground different from proof specific to the
Page 12
12
offense charged. See generally 1 J. Weinstein, M. Berger, & J. McLaughlin,
Weinstein's Evidence, ¶ 403[03] (1996) (discussing the meaning of "unfair
prejudice" under Rule 403). So, the Committee Notes to Rule 403 explain,
“'Unfair prejudice' within its context means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one.” Advisory Committee's Notes on Fed. Rule Evid. 403, 28
U.S.C.App., p. 860. (footnote omitted)(emphasis supplied)
The admission of State’s exhibit 11 was not the type of evidence to “lure the
factfinder into declaring guilt on a ground different from proof specific.” The weapon was
identified as the one used in the robbery, or at least similar to the one the complainant was
beat about the head with. The evidence was not more prejudicial than probative. Further,
the court's ruling on a rule 403 objection will only be reversed for a clear abuse of discretion.
See Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). Therefore, State’s
exhibit 11 was admissible under Rule 403.
D. Admissibility of State’s Exhibit 10
Because State’s exhibit 11 was identified as the firearm used in the robbery, State’s
exhibit 10 was not admissible as a similar weapon. See generally, Montgomery, 810 S.W.2d
at 386. Having found error in the admission of State’s exhibit 10, we must address whether
appellant was harmed by the trial court’s error.
In determining whether appellant was harmed, we apply the standard set out in Texas
Rule of Appellate Procedure 44.2(b) to non-constitutional errors. Under Rule 44.2(b),
appellant must show that a substantial right was affected. A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal
conviction should not be overturned for non-constitutional error if the appellate court, after
examining the record as a whole, has a fair assurance that the error did not influence the jury,
or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
Page 13
13
1998).
Appellant claims he was harmed not by the admission of either firearm individually,
but by the admission of two firearms. Appellant asserts that because two firearms were
admitted into evidence, the jury could have concluded that appellant also used a firearm
during the commission of the offense. The record does not support appellant’s assertion.
The State used both firearms twice during its case in chief. The first time, the State
showed both weapons to the complainant and asked if either weapon looked like the one used
in the offense. The complainant responded that State’s exhibit 10 looked like the firearm,
but the gun used in the offense had a shorter barrel than State’s exhibit 10. The complainant
was subsequently asked to identify “the man without the gun.”
The complainant then
identified appellant. The second time the State used both weapons was when the prosecutor
asked Officer Clement to testify as to how she recovered each weapon. Officer Clement did
not testify that both weapons had been used during the offense.
During Darlene Cheeks’ testimony, the State showed her State’s exhibit 11 and she
testified that the firearm belonged to appellant’s co-defendant. She further testified that
when appellant and the co-defendant left the car to commit the robbery, the co-defendant
carried the gun and when they returned to the car, the co-defendant was carrying the gun.
She never testified that appellant carried any weapon. During closing argument, the State
did not refer to either weapon. Further, the State did not lead the jury to believe that two
firearms had been used in the commission of the offense. Having examined the record as a
whole, we conclude the improper admission of State’s exhibit 10 did not influence the jury.
The fifth and sixth points of error are overruled.
The judgment of the trial court is affirmed.
Page 14
3
Former Judge Charles F. Baird sitting by assignment.
14
/s/
Charles F. Baird
Justice
Judgment rendered and Opinion filed March 30, 2000.
Panel consists of Justices Edelman, Wittig and Baird.
3
Do Not Publish — T
EX
.R.A
PP
.P. 47.3(b).

Raise Your Hand organization....does not call on those that do......and only 2 of ? why do you not visit all?

Photos by George Gongora/Caller-Times

Garcia Elementary fifth-graders Taylor Jones-William (from left), Samantha Flores and Mariah Mirabal participate Thursday in the kick-off of Raise Your Hand, an effort to promote public schools.

Former Lt. Gov. Bill Ratliff says Garcia exemplifies what is right with public education.

PRINT THIS STORY | E-MAIL THIS STORY

Campaign will work to improve education

Former state official praises local school

By adriana garza Caller-Times
February 16, 2007

A group of business and community leaders are asking Texans to raise their hands in support of education reform.

Leaders with the bipartisan Raise Your Hand organization visited Garcia Elementary on Thursday to open their campaign to improve public schools.

The group advocates for public schools by providing more resources and training for teachers, and funding more dropout prevention programs.

Former Lt. Gov. Bill Ratliff, who serves on the organization's advisory board, told district leaders and Garcia fifth-graders that it is time to reverse the negative misconceptions about public education.

Ratliff said Garcia exemplifies what is right with public education. The school is one of two campuses in the Corpus Christi Independent School District to earn an exemplary rating in the state's accountability rankings.

Ratliff said the state education system provides students with a good education but there is room improvement.

"We do have some things we need to do better," Ratliff said.

Raise Your Hand supports smaller class sizes. Ratliff said that by lowering the student-to-teacher ratio, students will have more individual time and instruction from teachers.

The organization also advocates for all-day pre-kindergarten and kindergarten for all 4- and 5-year-olds in the state and for college-focused programs in high schools.

Currently some pre-kindergarten programs are three hours long and students must meet eligibility standards, which include being from a limited income household or having limited English comprehension.

Ratliff said the initiatives Raise Your Hand supports will require an increase in funding from the state and may take years to come to fruition.

"We are in this for a marathon; it's not a sprint," Ratliff said.

Garcia Principal Patricia Castillo said the changes Raise Your Hand supports would benefit everyone involved in education.

"Their initiatives are right on target," she said.

Contact Adriana Garza at 886-3618

education for the rich Utilizing Instructional Facilities Allotment (“IFA~)TAXing poor peoples money

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Footnotes in HTML versions of opinions are designated by superscript “balloons” or boxes (click on either for the footnote text) and are not numbered. For an exact copy of the opinion, retrieve the Adobe PDF version.

IN THE SUPREME COURT OF TEXAS


════════════

No. 04-1144

════════════

Shirley Neeley,

Texas Commissioner of Education, et al., Appellants,

v.

West Orange-Cove Consolidated

Independent School District, et al., Appellees


consolidated with


════════════

No. 05-0145

════════════

Alvarado Independent School District,

et al., Appellants,

v.

Shirley Neeley,

Texas Commissioner of Education, et al., Appellees


consolidated with




════════════

No. 05-0148

════════════

Edgewood Independent School District,

et al., Appellants,

v.

Shirley Neeley,

Texas Commissioner of Education, et al., Appellees

════════════════════════════════════════════════════

On Direct Appeal from the

250th District Court of Travis County, Texas

════════════════════════════════════════════════════


Argued July 6, 2005


Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O’Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.

Justice Brister filed a dissenting opinion.

Justice Willett did not participate in the decision.


Once again this Court is called upon to determine whether the funding of Texas public schools violates the Texas Constitution. Footnote Three groups of school districts raise three separate challenges.

The plaintiffs, 47 districts led by West Orange-Cove Consolidated Independent School District, Footnote which educate over a fourth of the State’s more than 4.3 million school children, contend that property taxes, though imposed locally, have become in effect a state property tax prohibited by article VIII, section 1-e of the Texas Constitution, because the State leaves districts no meaningful discretion to tax below maximum rates. Article VIII, section 1-e states simply: “No State ad valorem taxes shall be levied upon any property within this State.” Footnote We held in Edgewood III that “[a]n ad valorem tax is a state tax when it is imposed directly by the State or when the State so completely controls the levy, assessment and disbursement of revenue, either directly or indirectly, that the authority employed is without meaningful discretion.” Footnote

The other two groups, intervenors, totaling an additional 282 districts, also educate about a fourth of the State’s school children. One group is led by Edgewood Independent School District, Footnote the other by Alvarado Independent School District. Footnote Intervenors contend that funding for school operations and facilities is inefficient in violation of article VII, section 1 of the Texas Constitution, because children in property-poor districts do not have substantially equal access to education revenue.

All three groups also contend that the public school system cannot achieve “[a] general diffusion of knowledge” as required by article VII, section 1 of the Texas Constitution, because the system is underfunded.

Article VII, section 1 states:

A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools. Footnote

This provision sets three standards central to this case. One is that the public school system be efficient. In Edgewood I, we held:

There is no reason to think that “efficient” meant anything different in 1875 [when article VII, section 1 was written] from what it now means. “Efficient” conveys the meaning of effective or productive of results and connotes the use of resources so as to produce results with little waste; this meaning does not appear to have changed over time. Footnote

As applied to public school finance, we added, constitutional efficiency requires that “[c]hildren who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.” Footnote We have referred to efficiency in the broader sense as “qualitative”, and to efficiency in the context of funding as “financial”. Footnote The parties have also referred to financial efficiency as “quantitative”.

Another standard set by the constitutional provision is that public education achieve “[a] general diffusion of knowledge . . . essential to the preservation of the liberties and rights of the people”. Footnote We have labeled this standard “adequacy”, Footnote and the parties have adopted the same convention. The label is simply shorthand for the requirement that public education accomplish a general diffusion of knowledge. In this context, the word “adequate” does not carry its broader dictionary meaning: “[c]ommensurate in fitness; equal or amounting to what is required; fully sufficient, suitable, or fitting.” Footnote Our responsibility in this case is limited to determining whether the public education system is “adequate” in the constitutional sense, not in the dictionary sense. That is, we must decide only whether public education is achieving the general diffusion of knowledge the Constitution requires. Whether public education is achieving all it should — that is, whether public education is a sufficient and fitting preparation of Texas children for the future — involves political and policy considerations properly directed to the Legislature. Deficiencies and disparities in public education that fall short of a constitutional violation find remedy not through the judicial process, but through the political processes of legislation and elections.

A third constitutional standard is that the provision made for public education be “suitable”. We have mentioned this requirement only once, in Edgewood IV:

Certainly, if the Legislature substantially defaulted on its responsibility such that Texas school children were denied access to that education needed to participate fully in the social, economic, and educational opportunities available in Texas, the “suitable provision” clause would be violated. Footnote

In essence, “suitable provision” requires that the public school system be structured, operated, and funded so that it can accomplish its purpose for all Texas children.

Article VII, section 1, makes it “the duty of the Legislature” to provide for public education. Footnote The judiciary’s role, though important, is limited to ensuring that the constitutional standards are met. We do not prescribe how the standards should be met.

In this case, the district court, after a five-week bench trial, found in favor of the school districts on all their claims except for inefficient operations funding and enjoined the defendants Footnote (collectively “the State defendants”) from continuing to fund the public schools. Footnote The court issued its judgment on November 30, 2004, but stayed the effect of its injunction for ten months, until October 1, 2005, “to give the Legislature a reasonable opportunity to cure the constitutional deficiencies in the finance system”. Footnote The Legislature convened in regular session in January 2005, and while it gave much attention to public education issues, it did not reach consensus. After adjournment, the Governor called the Legislature into special session on June 21, 2005, and that session was in progress when we heard oral argument in this case on July 6. That session also ended without enactment of public education legislation, and the Governor immediately called a second special session to convene July 21. Thirty days later, the Legislature again adjourned without enacting public education legislation. The district court’s injunction has been stayed by the State defendants’ appeal. Footnote

We now hold, as did the district court, that local ad valorem taxes have become a state property tax in violation of article VIII, section 1-e, as we warned ten years ago they inevitably would, absent a change in course, which has not happened. Footnote Although the districts have offered evidence of deficiencies in the public school finance system, we conclude that those deficiencies do not amount to a violation of article VII, section 1. We remain convinced, however, as we were sixteen years ago, that defects in the structure of the public school finance system expose the system to constitutional challenge. Footnote Pouring more money into the system may forestall those challenges, but only for a time. They will repeat until the system is overhauled.

The judgment of the district court is modified and affirmed in part, reversed in part, and remanded for reconsideration of the award of attorney fees.

I

We begin by summarizing first the structure of the public school finance system in Texas as relevant to the issues in this case, then the evidence regarding the adequacy of public education thus financed, and finally the procedural background of the case. The record contains evidence through the end of the 2003-2004 school year, and our discussion of the present status of the system generally refers to that time frame unless otherwise noted.

A

The basic structure of Texas’ present public school finance system derives from Senate Bill 7 enacted by the Legislature in 1993. Footnote We have twice described the system thoroughly, Footnote including its historical evolution, Footnote and will not repeat here all that we have said before. In 1995, we held in Edgewood IV (among other things) that the system under Senate Bill 7 did not violate article VII, section 1, or article VIII, section 1-e of the Texas Constitution but noted that the system was “minimally acceptable only when viewed through the prism of history.” Footnote The parties in this case contend that the operation of the system has changed since Edgewood IV, and so in the discussion that follows we include several comparisons between then and now.

Texas has a little over 4.3 million children in public schools, and the number is growing by more than 72,500 per year. More than half qualify for federally subsidized, free or reduced-price lunches and are therefore categorized by the State as economically disadvantaged. Footnote About 15% have limited proficiency in English. According to the State defendants’ expert, the annual cost of public education is $30-35 billion, or about $7,000-8,000 per student, depending on what expenses are counted. More than half of the cost is funded by ad valorem taxes imposed by independent school districts on local property. The State funds only about 38% of the cost, down from about 43% in Edgewood IV, Footnote the lowest level in more than 50 years. Footnote The balance, usually around 8-9%, comes from the United States government.

There are 1,031 independent school districts Footnote — more than four times the number of counties. A fourth of public school students are educated in 12 districts in seven counties; Footnote half are educated in 45 districts. Footnote The largest district, Houston ISD, has 211,499 students, more than the combined student population in half of all the other districts put together. Footnote Two-thirds of the districts have fewer than 1,200 students each; half have fewer than 700 each; almost a fourth have fewer than 350 each; 11 districts have fewer than 60 each. Footnote Divide Independent School District in Kerr County, the smallest, has 10 students. Footnote

The Legislature’s decision to rely so heavily on local property taxes to fund public education does not in itself violate any provision of the Texas Constitution, Footnote but in the context of a proliferation of local districts enormously different in size and wealth, it is difficult to make the result efficient — meaning “effective or productive of results and connot[ing] the use of resources so as to produce results with little waste” Footnote — as required by article VII, section 1 of the Constitution. Footnote Compensation must be made for disparities in the amount of property value per student so that property owners in property-poor districts are not burdened with much heavier tax rates than property owners in property-rich districts to generate substantially the same revenue per student for public education. According to the evidence, in 2001, Dew ISD in Freestone County had an adjusted taxable value of $300,384,388, a “weighted average daily attendance” (“WADA”) of 147.43 students, Footnote and thus $2,037,488/WADA, while Boles ISD in Hunt County had an adjusted taxable value of $8,831,414, a WADA of 876.95 students, and thus $10,071/WADA. This 200-to-1 disparity was 700-to-1 in Edgewood I. Footnote Also, many districts have been created as tax havens Footnote — lots of property and few students — allowing property owners to escape paying their fair share of the cost of public education in Texas and making it more difficult to achieve efficiency. Footnote A system that operates with an excess of resources in some locales and a dearth in others is inefficient, as we held in Edgewood I Footnote and Edgewood II. Footnote Summing up in Edgewood III, we said:

The inefficiency was this gross disparity both in tax burden and in tax spending. To put it graphically, in some areas of the state, education resembled a motorcycle with a 1000-gallon fuel tank, and in other areas it resembled a tractor-trailer rig fueled out of a gallon bucket. Some vehicles were flooded, some purred along nicely, and some were always out of gas. A fleet of such vehicles is not efficient, even though a few of them may reach their destination. We did not hold that efficiency requires absolute equality in spending; rather, we said that citizens who were willing to shoulder similar tax burdens, should have similar access to revenues for education. Footnote

The large number of districts, with their redundant staffing, facilities, and administration, make it impossible to reduce costs through economies of scale. Footnote Bigger is not always better, but a multitude of small districts is undeniably inefficient. The justification offered for this situation is that as a matter of public policy, public schools should be locally controlled, although it has never been clear why the legitimate benefits of local control are so entirely inconsistent with efficiency in funding. Footnote Districts are firmly entrenched and powerfully resistant to meaningful change, and while matters have improved somewhat over the past century, the number of school districts has not declined significantly in the past two decades. Footnote

The purpose of Senate Bill 7 was to try to make funding public education with local property taxes efficient by reducing the effects of the vast disparities among the more than 1,000 independent school districts. School maintenance and operations (“M&O”) are funded separately from facilities. Tax rates set yearly are capped at $1.50/$100 valuation for M&O Footnote (except for seven districts in Harris County Footnote ), as they have been for sixty years, Footnote and $0.50/$100 valuation for debt service on facilities (referred to as “I&S”, for “interest and sinking fund”). Footnote For M&O, disparities in available revenue among the school districts are reduced in two ways: by supplementing property-poor district tax revenues with state funds through the Foundation School Program (“FSP”) under chapter 42 of the Education Code, Footnote and by “recapture” — a scheme under chapter 41 of the Education Code by which property tax revenue is taken from property-rich (“chapter 41”) districts and given to property-poor (“chapter 42”) districts — referred to by some as “Robin Hood”. Chapter 41 districts educate 12.3% of Texas students.

The FSP has two tiers for M&O. Tier 1 guarantees to all districts that tax at or above the rate of $0.86 per $100 valuation (and all districts but one do) a basic allotment of $2,537 per student in “average daily attendance” (“ADA”), subject to various special allotments and adjustments for district and student characteristics. Footnote Thus, any district with less than $295,000 value/ADA ($2,537 = .0086 x $295,000) receives FSP funds to supplement local revenue as if it had that much property value per student, up to an $0.86 tax rate. The basic allotment includes a per capita distribution (usually $250-300 Footnote ) for each student from the Available School Fund (“ASF”), Footnote which consists of certain appreciation from the Permanent School Fund, as required by the Constitution. Footnote Districts with $295,000 value/ADA or more receive no Tier 1 state funds, although they do receive the ASF distribution. Tier 2 guarantees that for each $0.01 of tax rate above $0.86, the yield will be $27.14/WADA Footnote — the yield a district would have if it had $271,400 value/WADA ($27.14 = .0001 x $271,400). Thus, a district with only $100,000 value/WADA could generate only $10/WADA in local tax revenue for each $0.01 of tax rate, and the FSP would add $17.14/WADA to make up the difference. A district taxing at the maximum $1.50 rate is thus guaranteed $1,736.96/WADA (($1.50 - $0.86) Footnote x $27.14). Districts with at least $271,400 value/WADA receive no Tier 2 funds. In Edgewood IV, the Tier 1 basic allotment was $2,300/ADA, and the Tier 2 guaranteed yield was $20.55/WADA, or $1,315.20/WADA at a tax rate of $1.50. Footnote

Recapture helps fund the FSP Footnote and further equalizes access to revenue among districts. Most districts with more than $305,000 value/WADA, and which therefore receive no funds under FSP Tier 1 or Tier 2 for M&O, must transfer that excess value — in practical reality, the tax revenue derived from it — to the State or other districts for distribution under the FSP to chapter 42 districts that have less. Footnote In Edgewood IV, the statutory retained value/WADA cap was $280,000. Footnote A chapter 41 district may choose to effectuate the transfer in one of five ways: Footnote (1) consolidate with a chapter 42 district, to reduce the value/WADA to $305,000 or less; Footnote (2) detach territory to a chapter 42 district, to achieve the same effect; Footnote (3) purchase “average daily attendance credits” from the State; Footnote (4) agree to pay to educate students in a chapter 42 district; Footnote or (5) consolidate tax bases with a chapter 42 district — combining the finance mechanism while leaving district administration independent. Footnote The third and fourth options call for a district to simply write a check directly to the State or other districts. Footnote Options (1), (2) and (5) are rarely used.

The net effect of recapture, generally speaking, is that a district with more than $305,000 value/WADA must pay, either to the State or to another district or districts directly, its local tax revenue that exceeds what the retained value generates. Thus, for example: a district with a 10,000 WADA and $366,000/WADA in property value, taxing at a $1.50 rate, for a revenue of $5,490/WADA, would be required to purchase 2,000 credits from the State at $5,490 each, totaling $10,980,000, to increase its deemed WADA to 12,000, reducing its deemed value/WADA to $305,000, leaving it $4,575/WADA for its own use. For the 1993-1994 school year, the first under Senate Bill 7, 99 chapter 41 districts transferred $433 million. For 2003-2004, 134 chapter 41 districts transferred over $1 billion. For 2004-2005, the amount of recapture is estimated to be over $1.2 billion. Thus, recapture has doubled in less than a decade, and in 12 years it may have almost tripled.

Several other statutory provisions reduce recapture payments and thus in effect raise the chapter 41 districts’ average actual retained value/WADA above the statutory limit of $305,000. A chapter 41 district receives an early-agreement discount of the lesser of 4% of its total recapture payment or $80/student for agreeing to the payment by September 1, Footnote and an efficiency discount of the lesser of 5% or $100/student for agreeing to pay a chapter 42 district or districts directly, rather than sending the payment to the State. Footnote These discounts saved chapter 41 districts $43.4 million in recapture payments in the 2003-2004 school year, but the efficiency discount also benefitted chapter 42 districts, who received $81.4 million more than they would have had the recapture payments been made through the State. Neither of these discounts existed when Edgewood IV was decided.

Also, as we said above, most districts may retain only $305,000 value/WADA, but there is an exception: for a district taxing at the maximum $1.50 rate, recapture cannot reduce its revenue/WADA, excluding the ASF distribution, below the level for the 1992-1993 school year. Footnote This exception was designed to mitigate the impact of Senate Bill 7 on the wealthiest districts and was initially intended to last only three years, Footnote but it has become permanent and has even been increased. Footnote There are 34 of these so-called “hold-harmless” districts, educating less than 1% of Texas students. Footnote On average they retain $421,373/WADA instead of $305,000/WADA, thereby saving about $38 million in revenue that would otherwise have been transferred to the FSP. This raises the average retained value/WADA of all chapter 41 districts to $341,457. In Edgewood IV we held that the effect of the hold-harmless districts was not so great as to render the entire system inefficient, especially since they were to be phased out in three years. Footnote

Senate Bill 7 thus retains in its design a gap in available per-student M&O revenue attributable to property-wealth disparities among school districts. We discussed this gap in Edgewood IV. To compare its size then and now, we must exclude hold-harmless districts, discounts, and other factors that effectively raise the statutory cap on a district’s retained wealth/WADA, disregard for purposes of a benchmark comparison the differences between ADA and WADA and other Tier 1 and Tier 2 formula differences, and assume a maximum tax rate of $1.50. With these assumptions, the FSP guarantees $4,273.96/student, Footnote while a district with a tax base of $305,000/student has $4,575/student — a difference of $301.04/student, or 7%. Under the statutory parameters that existed in Edgewood IV, this gap was $584.80/student, or 16%. Footnote If a $300 ASF distribution is added to the non-FSP revenue, the gap is enlarged to 14% at present and 24% in Edgewood IV.

In actual operation, however, this gap is wider. According to the intervenors’ expert, on average, at a tax rate of $1.48, chapter 41 districts’ revenue is $5,457/WADA while chapter 42 districts’ revenue is $4,330/WADA, a difference of $1,127/WADA or 26%. By comparison, at the time of Edgewood IV (as reflected in the record but not our opinion), the average tax rate was only $1.17, chapter 41 districts’ average revenue was $3,510/WADA, and chapter 42 districts’ average revenue was $3,005/WADA, a difference of $505 or 17%. The proportional size of the gap in actual operation has thus increased by about half, from 17% to 26%. But as we have noted, we did not consider in Edgewood IV the effect of hold-harmless districts that would have made the gap much larger, and other discounts and factors that would affect these figures did not exist. According to the intervenors’ expert, these elements together contribute at least $599 to the present difference. Assuming they would have impacted the calculations at the time of Edgewood IV similarly, the increase in the gap since then would be much smaller.

Looking to the extremes rather than at averages, with similar tax rates near the maximum, districts at or above the 95 percentile level of property value per student have $5,895/WADA, while districts at or below the 5 percentile level have only $4,217/WADA, a difference of $1,678, or 40%. In Edgewood IV, this gap was projected to be about $600 — actually, according to the evidence, $4,440 vs. $3,868, or 16% — with hold-harmless districts phased out and all districts taxing at a $1.50 rate. Footnote

To generate the same revenue per student that the FSP guarantees to an average chapter 42 district that taxes at the maximum $1.50 rate, taking into account differences between Tier 1 and Tier 2 formulas, the average chapter 41 district need only tax at the rate of $1.33. A different comparison was made in Edgewood IV. There we calculated that to generate $3,500/WADA, which the trial court had found to be the cost of an adequate education — or in the words of article VII, section 1 of the Texas Constitution, “[a] general diffusion of knowledge” Footnote — districts at or below the 15 percentile level of property value per student, averaging a $26.74 yield per $0.01 of tax, were required to tax at a $1.31 rate while districts at or above the 85 percentile level, averaging a $28.74 yield per $0.01 of tax, needed only a $1.22 rate. Footnote The parties in this case have not attempted to replicate this calculation for current data.

Since the 1993-1994 school year, which we reviewed in Edgewood IV, M&O tax rates have migrated to the $1.50 maximum. That year, most districts’ tax rates were below $1.20; now, only about 2% of the districts, with less than one-fourth of 1% of the students, tax below $1.20. The concentration of districts at the higher tax rates is shown in the following table:




1993-1994


2003-2004

$1.50


2% of the districts with

1% of the students


48% of the districts with

54% of the students

≥ $1.45


6% of the districts with

6% of the students


67% of the districts with

81% of the students

< $1.40


89% of the districts with

85% of the students


20% of the districts with

10% of students



In the 1993-1994 school year, school districts spent only 83.3% of the revenue that could have been generated at maximum tax levels for public education; now they spend over 97%. The trial court found that —

any remaining capacity is not realistically available because accessing this capacity would require (1) a virtually 100% tax collection rate (practically impossible); (2) the repeal of any property tax exemptions (politically improbable); and (3) a district to have stable or increasing property values. In other words, these percentages represent virtual full funding for most of the larger districts in the system.

Up to this point we have been describing the financing of school maintenance and operations. For instructional facilities (as opposed to facilities used for administration and extracurricular purposes), Footnote the FSP includes what may be considered a third tier Footnote that partially equalizes access to funding up to the maximum $0.50 tax rate to support bonds. Footnote Through the Instructional Facilities Allotment (“IFA”), the State guarantees districts a yield of $35/ADA for each $0.01 of I&S tax rate for bonds for new facilities, with certain exceptions, Footnote up to a maximum of the lesser of $250/ADA or $100,000, Footnote for the life of the bonds. To retire preexisting debt, the Existing Debt Allotment (“EDA”) guarantees districts $35/ADA for each $0.01 of I&S tax rate up to $0.29, with certain exceptions. Footnote However, unlike the FSP Tier 1 and Tier 2, both the IFA and the EDA are subject to funding being appropriated by the Legislature. A district that receives an EDA grant for debt service in one biennium has no guarantee that the grant will be renewed at all or at the same level for the life of the debt, and must assume the risk that the assistance provided will be limited. Neither the IFA nor the EDA assists districts too poor to levy taxes in the first place.

Property-poor districts are given priority for IFA funding Footnote but not for EDA. New and existing IFA awards now total about $270 million, but substantial requests have gone unfunded. In the 2002-2003 school year, 520 school districts got $457.5 million in EDA allotments. Together, the two allotments equalize districts’ access to revenue for 90% of eligible debt service. I&S rates are excluded from Tier 2 allotments Footnote and are not used in recapture calculations, Footnote so that districts’ retained wealth for I&S taxes is not capped as it is for M&O taxes. Thus, property-rich districts have more than 20 times as much value/WADA to tax for facilities as property-poor districts. By contrast, in Edgewood IV, I&S tax rates for debt service were included within Tier 2 allotments Footnote and used for recapture calculations to cap retained value.

The district court found:

Lacking sufficient funding, property-poor districts such as the Edgewood Intervenors have been unable to provide adequate facilities for all the children in their districts. Substandard conditions include: overcrowded schools and classrooms; out-of-date buildings, equipment and fixtures; inadequate libraries, science labs, cafeterias, gymnasiums, and other school facilities.

The court identified health and safety concerns raised by some conditions, like inadequate heating, air conditioning, and ventilation, and science laboratories without emergency eye washes, fume hoods, exhaust fans, and other safety features. The court found that inadequate facilities negatively impacted student scores on standardized tests, and that “property-poor districts like the Edgewood Intervenors lack all the facilities essential to providing students a learning environment in which to attain a general diffusion of knowledge.”

The State makes a few other contributions to public education finance besides the programs and allotments we have described. It paid districts $110 per student for the 2003-2004 school year, and it has funded other projects, like Head Start and the High School Completion Initiative. But 95% of all funds for public education flow through the Foundation School Program, including the IFA and the EDA, and are thereby equalized among the districts. The other 5% includes tax revenue that is not recaptured, taxes above the $1.50 M&O level in seven districts, and I&S tax revenue that exceeds the IFA and EDA yields or is not included under these allotments. On the whole, about 85% of the student population resides in districts with revenue equivalent to a district with $271,400/student.

B

The finance system we have described funds an education system with four integrated components: a state curriculum, a standardized test to measure how well the curriculum is being taught, accreditation standards to hold schools accountable for their performance, and sanctions and remedial measures for students, schools, and districts to ensure that accreditation standards are met.

The Legislature has prescribed the following basic public school curriculum:

Each school district that offers kindergarten through grade 12 shall offer, as a required curriculum:



(1)a foundation curriculum that includes:



(A)English language arts;

(B)mathematics;

(C)science; and

(D)social studies, consisting of Texas, United States, and world history, government, and geography; and



(2)an enrichment curriculum that includes:



(A)to the extent possible, languages other than English;

(B)health;

(C)physical education;

(D)fine arts;

(E)economics, with emphasis on the free enterprise system and its benefits;

(F)career and technology education; and

(G)technology applications. Footnote

The Legislature has also required that “[t]he State Board of Education [‘SBOE’], with the direct participation of educators, parents, business and industry representatives, and employers shall by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate”. Footnote After years of consultation and study, over a thousand public meetings, and thousands of public comments, the SBOE adopted the Texas Essential Knowledge and Skills (“TEKS”) curriculum for use beginning in the 1998-1999 school year. The Legislature has also required the SBOE to “determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum”. Footnote In 2000, after study and input, the SBOE revised these programs, making them more difficult and restricting future participation in the minimum program. Beginning in the 2004-2005 school year, no high school student may be enrolled in the minimum program unless the student, the student’s parent or guardian, and a school administrator agree. Footnote

To correspond to the curriculum changes, the Legislature required the development of a new state standardized test — the Texas Assessment of Knowledge and Skills (“TAKS”) test — to replace the Texas Assessment of Academic Skills (“TAAS”) test. Footnote The TAKS test, developed after consultation with educators and testing experts and first given in the spring of 2003, has harder questions, covers more subjects — five (reading/English Language Arts, writing, math, science, and social studies) instead of three (for most of TAAS’s duration) — and is given at more grade levels. Footnote A student must pass portions of the test for promotion to the fourth and sixth grades (and in school year 2007-2008 to the ninth grade), Footnote and cannot graduate high school without passing an exit-level test first administered in the eleventh grade. Footnote A student may take the test as many as three times in order to pass it for promotion, Footnote and for any student who fails any part, the district must provide accelerated instruction, Footnote an individualized graduation plan, Footnote and study guides to the student’s parents. Footnote A student may retake a necessary exit-level test any time it is administered. Footnote There are special tests for Spanish-speaking students, students with limited English proficiency, and disabled students. Footnote

At the Legislature’s direction, Footnote the SBOE determined after public input what scores would constitute passing — “cut scores” — and decided that they should be lower at first, increasing over three years, to give teachers and students time to adjust to the new and more difficult test. To pass the 2004 TAKS test, an 11th grader was required to answer correctly 37 out of 73 questions (50.7%) on the reading test, 24 out of 55 questions on the science test (43.6%), and 25 out of 60 questions (41.7%) on the math test. The passing rates for the 2004 TAKS test, calculated statewide and for five different student populations — African-American, Hispanic, white, economically disadvantaged (“ED”), Footnote and limited-English-proficiency (“LEP”) Footnote — are shown in this chart: Footnote

Grade


State


African-American


Hispanic


White


ED


LEP

11


72%


58%


61%


83%


58%


24%

10


49%


30%


34%


65%


32%


8%

9


57%


42%


45%


74%


43%


17%

8


63%


46%


53%


78%


50%


21%

7


65%


49%


56%


79%


53%


22%

6


73%


59%


64%


86%


62%


35%

5


62%


44%


51%


78%


49%


27%

4


75%


62%


69%


85%


66%


56%



These passing rates were somewhat lower than those for 2002, the last year the TAAS test was given. TAAS passing scores had increased significantly leading up to 2002, as shown in the following chart for reading, math, and writing tests in grades three through eight and ten (1994-2002), and social studies and science tests in the eighth grade (1995-2002):

subjects


all students


African-American


Hispanic


White


ED

reading


76% ➙ 92%


60% ➙ 87%


64% ➙ 88%


87% ➙ 97%


62% ➙ 87%

math


59% ➙ 93%


37% ➙ 86%


46% ➙ 90%


72% ➙ 97%


44% ➙ 89%

writing


78% ➙ 89%


65% ➙ 85%


69% ➙ 84%


87% ➙ 94%


67% ➙ 83%

social studies


65% ➙ 84%


46% ➙ 77%


48% ➙ 76%


80% ➙ 92%


47% ➙ 76%

science


76% ➙ 93%


56% ➙ 87%


63% ➙ 90%


90% ➙ 98%


62% ➙ 89%



In 1994 the minimum passing rate for an “academically acceptable” rating was 25%, and by 2002 it had climbed to 55%.

For accountability, schools and districts are rated “exemplary”, “recognized”, “academically acceptable”, or “academically unacceptable” Footnote based on “academic excellence indicators” chosen by the Commissioner of Education. Footnote Those indicators are standardized test scores, high-school completion rates, and seventh- and eighth-grade dropout rates. For each accountability rating, the required test passing rate must be met in each of five student groups — all students, African-American, Hispanic, white, and economically disadvantaged. The completion rate is the percentage of students entering the ninth grade who have either completed or are continuing their high school education four years later. If any school in a district is rated “academically unacceptable”, the district cannot be rated “exemplary” or “recognized”. With certain exceptions, the minimum requirements for each rating are as follows:

rating


passing TAKS


completion


dropout

exemplary


≥90% all subjects


≥95%


≤0.2%

recognized


≥70% all subjects


≥85%


≤0.7%

acceptable


≥50% English, writing, & social studies

≥35% math

≥25% science


≥75%


≤2%



These test passing rate requirements remain the same for the three years 2004-2006 that the test cut scores are phased in, then they increase incrementally for three years to the point that a district must have a test passing rate of at least 70% for all student groups in all subjects to be rated “academically acceptable”. After 2006, GED recipients will no longer be counted as completers. In 2005, the maximum dropout rate for an “academically acceptable” rating falls to 1%, and in 2007 a broader definition of dropout will be used.

Before the change to the TAKS test in 2003, many districts improved their accreditation rating, but at the same time the number of “academically unacceptable” districts also grew. After the change to the harder test, ratings predictably slid, although the number of “academically unacceptable” districts also declined. The following table summarizes these trends:




1994


2002


2004

exemplary


6


149


13

recognized


54


426


365

acceptable


983


449


655

unacceptable


3


16


4

total


1046


1040


1037

As sanctions for an “academically unacceptable” rating, the Commissioner of Education may, among other things, order a school board to hold a public hearing on the deficiency, Footnote order the school board president and superintendent to appear before the Commissioner, Footnote or order an on-site evaluation and recommendations for reform. Footnote After a year, the Commissioner may appoint a board of managers in place of the school board. Footnote After two years, the Commissioner may annex the district to an adjoining district. Footnote (For example, the Commissioner has recently announced her intention to annex the Wilmer-Hutchins Independent School District to the Dallas Independent School District, pending pre-clearance by the United State Department of Justice under the federal Voting Rights Act. Footnote )

Academic success is also measured by the National Assessment of Educational Progress (“NAEP”) achievement test, as witnesses for all parties at trial acknowledged. In 2000, controlling for socioeconomic and family characteristics, Texas was first out of 47 states overall, first for white students, fifth for African-American students, ninth for Hispanic students, first for fourth- and eighth-graders in math, and second in rate of improvement. In 2003, Texas ranked first in the nation in closing the gap between African-American and white fourth-graders in math, and second in the nation in closing the gap between Hispanic and white fourth-graders in math and reading. But unadjusted NAEP data, which may more accurately reflect college preparation, showed Texas sinking to 37th among the states in fourth-grade and eighth-grade reading, although it had risen to 22nd in fourth-grade math and remained 34th in eighth-grade math.

Because more students are failing the TAKS test than were failing the TAAS test, and because passing the TAKS test is now required for promotion to the fourth and sixth grades, the districts must spend more for remediation through summer school, remedial classes, curriculum specialists, reduced class-size, and more math and science teachers. There is a worsening undersupply of teachers, aggravated by high attrition and turnover. Additionally, the percentage of LEP and ED students, who generally cost more to educate, has increased. The FSP provides an extra bilingual education allotment for LEP students Footnote and an extra compensatory education allotment for ED students, Footnote but the attendance weights used to determine those allotments have not increased since 1985.

Based on the eleventh-grade exit-level TAKS test, the percentages of student groups meeting the college-readiness standards of the Texas Higher Education Coordinating Board for English and math are shown in this table:

subjects


all students


African-American


Hispanic


White


LEP

English


28%


18%


20%


36%


3%

math


42%


21%


28%


55%


13%



In 2003, Texas ranked last among the states in the percentage of high school graduates at least 25 years old in the population. Texas also has a severe dropout problem: more than half of the Hispanic ninth-graders and approximately 46% of the African-American ninth-graders leave the system before they reach the twelfth grade. The gaps between white students on the one hand and African-American and Hispanic students on the other are especially troublesome since the African-Americans and Hispanics are projected to be about two-thirds of Texas’ population in 2040. According to the plaintiffs’ expert, if these gaps are not reduced, Texas will “have a population that not only will be poorer, less well-educated, and more in need of numerous forms of state services than its present population, but also less able to support such services . . . [and] less competitive in the increasingly international labor and other markets.”

It is difficult to quantify the cost of an adequate education — one that achieves a general diffusion of knowledge. The parties offered competing cost function studies prepared by economists, examining statistical relationships between spending and student performance, taking into account student and school characteristics. We do not attempt to describe here the detailed procedures used in the studies but focus only on the conclusions. The study offered by plaintiffs and intervenors, done by Dr. Jennifer Imazeki and Dr. Andrew Reschovsky (the “I/R study”), concluded that to achieve a 55% statewide pass rate on the 2005 TAKS test would require additional spending of from $1.653 billion to $6.171 billion — between $401 and $1,511 more per student. The study offered by the State defendants, done by Dr. Lori Taylor (the “Taylor study”), concluded that some 17% of school districts — 117 out of 695 studied Footnote — could not achieve a 55% pass rate in 2003 at a $1.50 tax rate without additional revenue of $563-$731 million. The district court accepted the I/R study and found the Taylor study flawed in several respects. Despite those flaws, the court continued, the Taylor study showed that school funding was insufficient to provide an adequate education in many districts. The court also found that both studies underestimated the costs of meeting accreditation standards. As the State defendants noted, however, the cost studies and court findings overlook the reality that almost all schools are meeting accreditation standards with current funding.

C

Four of the plaintiff school districts initiated this action in April 2001, alleging that the $1.50 maximum M&O tax rate had become in effect a state property tax prohibited by article VIII, section 1-e of the Texas Constitution, Footnote because they and other districts had lost all meaningful discretion to tax at any lower rate. Footnote Forty school districts intervened in two groups, six with Edgewood ISD and 34 with Alvarado ISD, opposing the plaintiffs’ position but asserting that the public school finance system was inefficient, inadequate, and unsuitable in violation of article VII, section 1 of the Texas Constitution, Footnote because the State does not provide sufficient funding. Footnote About three months after suit was filed, the trial court dismissed the plaintiffs’ claims on the pleadings, concluding that the plaintiffs could not prove an unconstitutional state ad valorem tax unless about half of the school districts, more or less, were taxing at maximum rates, and by the plaintiffs’ own admission, less than a fifth of the districts were at the cap at the time. Footnote The court of appeals affirmed, not because so many school districts were still taxing below maximum rates, but because it concluded that the plaintiffs had not alleged that taxing at maximum rates was necessary just to provide an accredited education, rather than being used for additional programs. Footnote

We reversed. The Legislature, we said, is constitutionally obligated “to make suitable provision for a general diffusion of knowledge through free public schools”, Footnote and because it “has chosen to rely heavily on school districts to discharge its duty”, Footnote school districts must tax at levels necessary to achieve the constitutional mandate Footnote as well as to meet statutory accreditation standards that the Legislature has imposed to achieve a general diffusion of knowledge. Footnote If school districts are forced to tax at or near maximum rates to meet constitutional and statutory requirements, then control over local ad valorem tax rates and spending effectively shifts to the State, depriving school districts of any meaningful discretion to tax below the rate cap set by the State or to spend on programs other than those required by the State and the Constitution. Footnote The result, we again warned as we had in Edgewood IV, Footnote would be a state ad valorem tax in violation of article VIII, section 1-e. Footnote We concluded that the plaintiffs’ pleadings had fairly alleged that such a violation was occurring. Footnote

After we remanded the case to the trial court, 285 other school districts were added as plaintiffs or intervenors. The plaintiffs joined the intervenors in their article VII, section 1 claims that the public school finance system is inadequate and unsuitable, but not in their claims that the system is inefficient. To facilitate trial of the case, the plaintiffs, the Edgewood intervenors, and the State defendants agreed that each group would designate a few districts, which they called “focus districts”, on which the evidence would center. Footnote

On November 30, 2004, the district court rendered judgment for the plaintiffs on all their claims and for the intervenors on all but one of their claims. In extensive findings and conclusions, the court held that local ad valorem taxes had become a state ad valorem tax in violation of article VIII, section 1-e, that the public school finance system is inadequate and unsuitable in violation of article VII, section 1, and that the funding of school facilities is inefficient in violation of article VII, section 1. The court refused to find that the funding of school maintenance and operations is also inefficient. The court enjoined the State defendants “from giving any force and effect to the sections of the Education Code relating to the financing of public school education (Chapters 41 and 42 of the Education Code) and from distributing any money under the current Texas school financing system until the constitutional violations are remedied.” The court stayed this injunction until October 1, 2005, “to give the Legislature a reasonable opportunity to cure the constitutional deficiencies in the finance system”. Finally, the court awarded the plaintiffs and intervenors $4,273,120.50 in attorney fees through proceedings in this Court. Footnote

The State defendants and each of the two intervenor groups filed separate, direct appeals to this Court. Footnote We noted probable jurisdiction in all three cases, Footnote consolidated them, Footnote and expedited briefing and oral argument.

II

At the outset, the State defendants challenge the district court’s subject matter jurisdiction on three grounds: that the plaintiff and intervenor school districts lack standing to assert any of their constitutional claims, that their claims under article VII, section 1 are nonjusticiable political questions, and that article VII, section 1 is not self-executing and thus cannot be enforced by court action. With one exception, we have previously rejected all of these contentions, either expressly or implicitly, in this case when it was last before us or in the other cases in which the constitutionality of the public school finance system has been at issue. In none of our prior cases has a school district’s standing to challenge the public school finance system under article VII, section 1 been challenged, and we have not specifically addressed that issue.

To the extent we have already spoken to these issues, the State defendants urge us to reconsider. Our prior decisions have not ended litigation over school finance once and for all, and the State defendants argue that this is because the courts cannot give sufficiently certain meaning to the constitutional standards. Each new case, they argue, threatens to drag the courts inescapably into a morass of policy-making where they do not belong and from which they will not be able to extricate themselves, endlessly second-guessing the detailed structures of public education. We think our prior opinions on these matters are clear enough and remain correct, but because the issues are important, we address each of the State defendants’ arguments in turn.

A

In the plaintiffs’ earlier appeal, we held “that the plaintiff school districts in this case have standing to assert their claims.” Footnote At that time, the plaintiffs’ only claims were under article VIII, section 1-e. The State defendants argue that to allow the plaintiffs and intervenors standing to raise any of their constitutional claims is inconsistent with the general rule that governmental entities do not possess constitutional rights, citing our 1966 decision in Deacon v. City of Euless, Footnote the court of appeals’ decision in Nueces County Appraisal District v. Corpus Christi People’s Baptist Church, Inc., Footnote and the dissent in the prior appeal. Footnote In Deacon, we held that a home-rule city could not complain that legislation affecting its power to annex territory was unconstitutionally retroactive, Footnote but we did not establish a broad rule that a governmental entity cannot sue to declare a statute unconstitutional. The court of appeals noted this in Nueces County, stating that Deacon did not “establish an ironclad rule that a county may never attack the constitutionality of a state statute”, Footnote and held that a county was the proper party to challenge a statute that allowed churches to regain tax exemptions they had lost by failing to timely file claims. Footnote Thus, of the three authorities on which the State defendants rely, only the prior dissent in this case lends support to their position.

In answer to the dissent, we said:

In Nootsie, Ltd. v. Williamson County Appraisal District, we held that a county appraisal district had standing to seek a declaratory judgment that the Legislature had unconstitutionally defined open-space land for tax purposes to include ecological laboratories. We see no difference in the standing of an appraisal district to assert its claims in Nootsie and the standing of the school districts here. Footnote

Following Nootsie, we held in Proctor v. Andrews that the City of Lubbock had standing to challenge the constitutionality of a statute requiring arbitration of disciplinary disputes with its police officers “‘because it is charged with implementing a statute it believes violates the Texas Constitution.’” Footnote That interest, we said, gave the City “‘a sufficient stake in [the] controversy to assure the presence of an actual controversy that the declaration sought will resolve.’” Footnote The City’s claims in Proctor were that the statute was an unconstitutional delegation of legislative power to a private authority and an impermissible infringement on the constitutional powers of home-rule cities. A year later, in Wilson v. Andrews, we held that the City also had standing to challenge the statute on due process and equal protection grounds. Footnote “[T]he constitutional demands of standing,” we explained, “are that there is (a) a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought. Under this standard, Lubbock indeed has standing.” Footnote

The State defendants argue that Nootsie is distinguishable because there, the appraisal district had an “interest, as a tax-collecting entity, in ensuring the collection of those tax obligations legally due”, whereas here, the school districts “are merely representing the potential interests of students and parents in their districts.” But this argument with respect to article VII, section 1 ignores what we said in the plaintiffs’ earlier appeal, that the Legislature has required school districts to achieve the goal of a general diffusion of knowledge. Footnote This requirement is expressly imposed by section 11.002 of the Education Code, which states:

The school districts and charter schools created in accordance with the laws of this state have the primary responsibility for implementing the state’s system of public education and ensuring student performance in accordance with this code. Footnote

School districts’ interest in discharging this duty is not merely representative of constituent students and taxpayers. And with respect to article VIII, section 1-e, the State defendants’ argument overlooks the fact that school districts’ interests in not collecting an illegal tax may conflict with taxpayers’ interest. For one thing, school districts’ concerns could be met simply by raising the cap on ad valorem taxes, something that could well be expected to aggravate taxpayers’ concerns.

The dissent agrees that school districts have standing to challenge public school finance under article VIII, section 1-e Footnote but argues that they have no standing to assert challenges under article VII, section 1 because that provision confers rights only on school children, not districts. Footnote We think the guarantee of public free schools assured by article VII, section 1, extends not only to school children but to the public at large, which is vitally concerned that there be a general diffusion of knowledge. We agree that the provision creates no rights in school districts, Footnote but such rights are not a prerequisite for standing to assert that the provision has been violated. Standing to assert a constitutional violation depends on whether the claimant asserts a particularized, concrete injury. As we recently explained in Brown v. Todd:

under Texas law, standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff and “a real controversy between the parties, which . . . will be actually determined by the judicial declaration sought.” Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995); see also State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).



. . . [W]e may look to the similar federal standing requirements for guidance. [Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).] “To meet the standing requirements of Article III [of the United States Constitution], ‘[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’” [Raines v. Byrd, 521 U.S. 811, 818-819 (1997)] (quoting Allen v. Wright, 468 U.S. 737, 751 . . . (1984)) . . . . The United States Supreme Court has “consistently stressed that a plaintiff’s complaint must establish that he has a ‘personal stake’ in the alleged dispute” and that the injury suffered is “concrete and particularized.” Id. at 819 . . . (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 . . . (1992)). Footnote

The dissent argues that school districts have suffered no injury because they have lost no funds that belong to them, and that “[t]he injury [the districts have] alleged in this case was suffered only by school students”. Footnote But the school districts have alleged the very same injury that the appraisal district alleged in Nootsie and the city in Proctor, which is that they are being required to implement unconstitutional statutes. And this is also the same injury that gives the districts standing to complain that local ad valorem taxes have become a state property tax in violation of article VIII, section 1-e.

The dissent argues that “[t]he districts do not complain that they are affirmatively compelled to perform unconstitutional teaching, testing, or any other services; they complain only that they are underfunded.” Footnote The dissent disregards the plaintiffs’ statement in their brief:

the school districts stand in precisely the same position as the county appraisal district in Nootsie: all are required to implement statutes that they regard as unconstitutional.

Likewise, the Edgewood intervenors asserted standing in the district court because “they have been charged with implementing statutes which they believe violate the Texas Constitution.”

The dissent repeatedly states that government agencies do not have standing to sue for increased funding, Footnote tacitly assuming that funding of governmental functions is always a matter of policy and allocation of resources. The dissent’s statements are not true when funding is required by the Constitution, as the districts claim here. In Vondy v. Commissioners Court, we held that by providing that justices of the peace be compensated by salary, article XVI, § 61 Footnote requires commissioners courts to set reasonable salaries. Footnote Similarly, we held in Mays v. Fifth Court of Appeals that a commissioners court must pay a district court’s court reporter the salary determined by the district court as authorized by statute. Footnote The dissent attempts to distinguish these cases as “involv[ing] nondiscretionary ministerial acts”, Footnote but the commissioners court in Vondy had discretion to determine what salary was reasonable, and making that determination was not simply a ministerial act. Similarly, the Legislature has discretion under article VII, section 1 to determine how to structure and fund the public education system to achieve a general diffusion of knowledge. However, in Vondy, as in this case, governmental discretion is circumscribed by the Constitution. Article VII, section 1 requires that public school finance be efficient and adequate to provide a general diffusion of knowledge. The school districts have standing to insist that this provision be obeyed.

Finally, the dissent argues that to allow school districts standing to challenge public school finance under article VII, section 1 distorts the constitutional issues because school districts will advance only their own interests and not those of students or others, and “fundamental reforms may be overlooked if school districts may assert Article VII claims by themselves”. Footnote Of course, a party’s standing to assert a claim does not depend on its ability or willingness to look out for interests other than its own, and the dissent has no authority to the contrary. Not all districts share the same view of the public school system. The plaintiffs and intervenors do not, and more than two-thirds of the districts have not joined this action. The fact that districts disagree among themselves and may also disagree with some students, parents, teachers, and taxpayers does not deprive them of standing to assert the claims they have. The dissent argues that the record in this case would look far different if it could be brought only by individuals and not by districts, but this ignores two facts: individuals who the dissent thinks would take different positions were free to intervene, and essentially all of the arguments made by the school districts in this case have been made by individuals in prior cases. The suggestion that the plaintiff and intervenor districts could not find one student out of 4.3 million to join in asserting their positions, when dozens have joined prior actions, cannot be taken seriously.

Like the appraisal district in Nootsie and the city in Proctor and Wilson, the school districts here have a real controversy to be resolved in this case, and thus they have standing. The dissent’s charge that we have abandoned judicial restraints like standing because this is a noteworthy case Footnote is simply not true. We do not suggest, of course, that only school districts have standing to raise the issues that have been raised here. Prior cases challenging public school finance have involved individual claimants as well as school districts. The State defendants do not contest that individuals would have standing to raise the claims in this case. The interests of individual taxpayers in suitable, adequate, efficient public education and in avoiding a state property tax might well diverge from those of their school districts. But individuals’ standing to assert these constitutional claims does not deprive school districts of standing to assert the same claims.

Accordingly, we conclude that the plaintiff and intervenor school districts have standing to assert the claims made in this case.

B

Preceding our decision in Edgewood I, a divided court of appeals held that whether the public school finance system is efficient within the meaning of article VII, section 1 “is essentially a political question not suitable for judicial review.” Footnote We firmly rejected that view:

This is not an area in which the Constitution vests exclusive discretion in the legislature; rather the language of article VII, section 1 imposes on the legislature an affirmative duty to establish and provide for the public free schools. This duty is not committed unconditionally to the legislature’s discretion, but instead is accompanied by standards. By express constitutional mandate, the legislature must make “suitable” provision for an “efficient” system for the “essential” purpose of a “general diffusion of knowledge.” While these are admittedly not precise terms, they do provide a standard by which this court must, when called upon to do so, measure the constitutionality of the legislature’s actions. We do not undertake this responsibility lightly and we begin with a presumption of constitutionality. Nevertheless, what this court said in only its second term, when first summoned to strike down an act of the Republic of Texas Congress, is still true:



[W]e have not been unmindful of the magnitude of the principles involved, and the respect due to the popular branch of the government. . . . Fortunately, however, for the people, the function of the judiciary in deciding constitutional questions is not one which it is at liberty to decline. . . . [We] cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution; [we] cannot pass it by because it is doubtful; with whatever doubt, with whatever difficulties a case may be attended, [we] must decide it, when it arises in judgment.



Morton v. Gordon, Dallam 396, 397-398 (Tex. 1841). If the system is not “efficient” or not “suitable,” the legislature has not discharged its constitutional duty and it is our duty to say so. Footnote

We reaffirmed this position in the plaintiffs’ earlier appeal in this case, extending it to include not only efficiency but the other standards in article VII, section 1:

The final authority to determine adherence to the Constitution resides with the Judiciary. Thus, the Legislature has the sole right to decide how to meet the standards set by the people in article VII, section 1, and the Judiciary has the final authority to determine whether they have been met. Footnote

Nevertheless, the State defendants argue that the history of school finance litigation over the past two decades requires us to reconsider whether the court of appeals in Edgewood I was right after all, and that the issues of adequacy, suitability, and efficiency under article VII, section 1 are all nonjusticiable political questions because they involve either “a textually demonstrable constitutional commitment of the issue[s] to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving [them]” — the two principal tests set out in the United States Supreme Court’s landmark decision in Baker v. Carr. Footnote The first test is satisfied, the State defendants continue, by the language of article VII, section 1, which expressly makes the establishment, support, and maintenance of free public schools “the duty of the Legislature”. Footnote The second test has been demonstrated, according to the State defendants, because “[s]ixteen years of school finance litigation ha[ve] disproved the Court’s expressed hope in Edgewood I that it could pass upon the legitimacy of the system without intruding upon the Legislature’s province.”

The tests of Baker v. Carr define nonjusticiable political questions for purposes of demarcating the separation of powers in the federal government under the United States Constitution. Footnote Assuming that the same tests would serve equally well in defining the separation of powers in the state government under the Texas Constitution, we disagree with the State defendants that either of the tests categorically precludes the judiciary from deciding the issues raised in this case under article VII, section 1. As we explained in the first appeal in this case, “[b]y assigning to the Legislature a duty, [article VII, section 1] both empowers and obligates.” Footnote The Constitution commits to the Legislature, the most democratic branch of the government, the authority to determine the broad range of policy issues involved in providing for public education. But the Constitution nowhere suggests that the Legislature is to be the final authority on whether it has discharged its constitutional obligation. If the framers had intended the Legislature’s discretion to be absolute, they need not have mandated that the public education system be efficient and suitable; they could instead have provided only that the Legislature provide whatever public education it deemed appropriate. The constitutional commitment of public education issues to the Legislature is primary but not absolute.

Nor do we agree with the State defendants that the constitutional standards of adequacy, efficiency, and suitability are judicially unmanageable. These standards import a wide spectrum of considerations and are admittedly imprecise, but they are not without content. At one extreme, no one would dispute that a public education system limited to teaching first-grade reading would be inadequate, or that a system without resources to accomplish its purposes would be inefficient and unsuitable. At the other, few would insist that merely to be adequate, public education must teach all students multiple languages or nuclear biophysics, or that to be efficient, available resources must be unlimited. In between, there is much else on which reasonable minds should come together, and much over which they may differ. The judiciary is well-accustomed to applying substantive standards the crux of which is reasonableness. This is not to say that the standards in article VII, section 1 involve no political considerations beyond the judiciary’s power to determine. We have acknowledged that much of the design of an adequate public education system cannot be judicially prescribed. Litigation over the adequacy of public education may well invite judicial policy-making, but the invitation need not be accepted. The judiciary’s choice is not between complete abstinence from article VII, section 1 issues, and being, in the State defendants’ words, “the arbiter of education and policy, overseeing such issues as curriculum and testing development, textbook approval, and teacher certification”. Rather, the judiciary’s duty is to decide the legal issues properly before it without dictating policy matters. The constitutional standards provide an appropriate basis for judicial review and determination.

The State defendants argue that if the standards of article VII, section 1 had judicially manageable content, litigation over the constitutionality of the public education system would not have lasted as long as it has. It is true, of course, as this case illustrates, that disagreements over the construction and application of article VII, section 1 persist. But such disagreements are not unique to article VII, section 1; they persist as to the meanings and applications of due course of law, equal protection, and many other constitutional provisions. Indeed, those provisions have inspired far more litigation than article VII, section 1, which has been at the heart of only a few lawsuits in two decades. Moreover, the continued litigation over public school finance cannot fairly be blamed on constitutional standards that are not judicially manageable; the principal cause of continued litigation, as we see it, is the difficulty the Legislature has in designing and funding public education in the face of strong and divergent political pressures.

To this point, we have assessed the State defendants’ arguments as if the tests of Baker v. Carr would apply under the Texas Constitution. If they do — a question we need not reach — their application is limited. In the federal system, political questions are a rarity. The United States Supreme Court has held only two issues to be nonjusticiable political questions: whether the military was properly trained, Footnote and whether the impeachment trial of a federal judge may be conducted before a Senate committee instead of the entire Senate. Footnote The Court did not hold the one-man-one-vote congressional apportionment issue in Baker v. Carr to be a political question, and it has refused to hold issues to be political questions in at least seven other cases. Footnote The Court did not even discuss the doctrine in Bush v. Palm Beach County Canvassing Board Footnote and Bush v. Gore, Footnote cases in which the winner of the 2000 national presidential election was at stake, certainly a “political issue” as conventionally understood, if not within the meaning of Baker v. Carr. Some have questioned whether the political question doctrine has any real vitality at all. Footnote This Court has never held an issue to be a nonjusticiable political question, and we have referred to the doctrine only in passing. Footnote The courts of appeals have applied the doctrine only rarely. Footnote

A few state supreme courts have refused to adjudicate constitutional challenges to public school finance on the ground that the issues were nonjusticiable political questions, Footnote but many others have rejected the argument. Footnote Like the majority of these states, we conclude that the separation of powers does not preclude the judiciary from determining whether the Legislature has met its constitutional obligation to the people to provide for public education.

C

The State defendants’ third challenge to the district court’s jurisdiction is that article VII, section 1 is not self-executing and thus does not allow for court action to enforce its provisions. The concept of a constitutional provision as self-executing, long-recognized in the law, was restated by this Court in 1898 in Mitchell County v. City National Bank of Paducah, Ky.:

“A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which these principles may be given the force of law.” Footnote

In that case, Mitchell County issued bonds to obtain funds for building bridges and a courthouse and jail. Footnote When the county refused to pay on the bonds, the holder sued. Footnote Article XI, section 2 of the Texas Constitution states that “[t]he construction of jails, court-houses and bridges . . . shall be provided for by general laws”, Footnote and section 7 of the same article prohibited certain cities and counties from incurring debt for certain projects without imposing taxes for a sinking fund to repay the debt. Footnote The Legislature had enacted statutes authorizing the kind of bonds Mitchell County had issued, but the county argued in part that the statutes improperly added to the constitutional requirements. Footnote We held that the constitutional provisions were self-executing only in prohibiting conflicting laws and did not preclude statutes passed to effectuate the provisions. Footnote

We have used the doctrine of self-executing constitutional provisions to preclude judicial action only once. Article XVI, section 59 of the Texas Constitution makes “[t]he conservation and development of all of the natural resources of this State . . . public rights and duties” and requires the Legislature to “pass all such laws as may be appropriate thereto”. Footnote In City of Corpus Christi v. City of Pleasanton, we held that this provision did not provide a basis to declare “what types of conduits and reservoirs may be used for the transportation and storage of water, lawfully obtained and lawfully used”, and especially, to “declare the use of certain types of conduits and reservoirs to be unlawful when the Legislature itself, by necessary implication, has declared them to be lawful.” Footnote The Legislature had acted to conserve river water, and the constitutional provision did not authorize us to impose a different, specific requirement. Footnote

The standards of article VII, section 1 — adequacy, efficiency, and suitability — do not dictate a particular structure that a system of free public schools must have. We have stressed this repeatedly. In Edgewood I, we wrote: “Although we have ruled the school financing system to be unconstitutional, we do not now instruct the legislature as to the specifics of the legislation it should enact; nor do we order it to raise taxes.” Footnote In Edgewood II, we said: “We do not prescribe the means which the Legislature must employ in fulfilling its duty.” Footnote In Edgewood III, we reiterated: “As before, we do not prescribe the structure for ‘an efficient system of public free schools.’ . . . We have not, and we do not now, suggest that one way of school funding is better than another, or that any way is past challenge, or that any member of this Court prefers a particular course of action . . . , or that one measure or another is clearly constitutional.” Footnote But like the constitutional provisions in Mitchell County, article VII, section 1 dictates what the public education system cannot be: it cannot be so inadequate that it does not provide for a general diffusion of knowledge, or so inefficient that districts which must achieve this general diffusion of knowledge do not have substantially equal access to available revenues to perform their mission, or so unsuitable that it cannot because of its structure achieve its purpose.

Thus, we agree with the State defendants that article VII, section 1 does not provide the courts a basis for declaring what education or finance systems will alone satisfy its standards. But the provision is self-executing insofar as it prohibits any system that fails to meet those standards.

III

We come, then, to the question whether the public education system violates the requirements of article VII, section 1.

A

The State defendants argue that in determining whether the public school finance system is adequate, efficient, and suitable, the test should be whether there is any rational basis for the Legislature to have fashioned the system the way it has. The plaintiffs and intervenors disagree, arguing that a rational-basis test is too deferential to the Legislature, but they have not suggested a clear alternative. In Edgewood I and II, we did not find it necessary to articulate a standard of review; the public school finance system was simply not “efficient” by any stretch of the word. Nor did we state a standard of review expressly in Edgewood IV, though it was a much closer case.

But the standard of review the Court applied in Edgewood IV is apparent from the opinion. For example, the property-poor school districts complained that the public school finance system was inefficient because as Senate Bill 7 was structured, the richest districts could always raise on average $600/WADA more than the poorest districts. Footnote We concluded that this gap was not unreasonable, given that the poorest districts could still provide an adequate education at a slightly higher tax rate. Footnote The property-poor districts also complained that the system was inefficient because Senate Bill 7 excepted a few “hold harmless” districts from full recapture for a three-year phase-in period. Footnote Again, we held that this accommodation was not so unreasonable as to render the entire system inefficient. Footnote In essence, we refused to find a constitutional violation when the challenged aspect of the system was not arbitrary. This comports with what we said in 1931 in Mumme v. Marrs:

The purpose of [article VII, section 1] as written was not only to recognize the inherent power in the Legislature to establish an educational system for the state, but also to make it the mandatory duty of that department to do so. . . . The Legislature alone is to judge what means are necessary and appropriate for a purpose which the Constitution makes legitimate. The legislative determination of the methods, restrictions, and regulations is final, except when so arbitrary as to be violative of the constitutional rights of the citizen. Footnote

The State defendants argue that there is no difference between a rational-basis test and a test based on arbitrariness. An action is arbitrary when it is taken without reference to guiding rules or principles Footnote — in other words, the State defendants argue, when it has no rational basis. But the phrase, “rational basis”, is more often associated with the minimal requirement a classification must meet to be consistent with the constitutional guarantee of equal protection when no suspect class or fundamental right is involved. Footnote In that context, the idea is that the government is permitted to give classes disparate treatment, notwithstanding the constitutional guarantee, as long as it has a rational basis for doing so. The same idea does not fit in the context of article VII, section 1. That provision does not allow the Legislature to structure a public school system that is inadequate, inefficient, or unsuitable, regardless of whether it has a rational basis or even a compelling reason for doing so. But the provision does allow the Legislature, of necessity, much latitude in choosing among any number of alternatives that can reasonably be considered adequate, efficient, and suitable. These standards do not require perfection, but neither are they lax. They may be satisfied in many different ways, but they must be satisfied.

Article VII, section 1 allows the Legislature a large measure of discretion on two levels. The Legislature is entitled to determine what public education is necessary for the constitutionally required “general diffusion of knowledge”, and then to determine the means for providing that education. But the Legislature does not have free rein at either level. “[T]he Legislature may [not] define what constitutes a general diffusion of knowledge so low as to avoid its obligation to make suitable provision imposed by article VII, section 1.” Footnote And “[w]hile the Legislature certainly has broad discretion to make the myriad policy decisions concerning education, that discretion is not without bounds.” Footnote It would be arbitrary, for example, for the Legislature to define the goals for accomplishing the constitutionally required general diffusion of knowledge, and then to provide insufficient means for achieving those goals. If the Legislature’s choices are informed by guiding rules and principles properly related to public education — that is, if the choices are not arbitrary — then the system does not violate the constitutional provision.

For article VII, section 1, as for other provisions, “[t]he final authority to determine adherence to the Constitution resides with the Judiciary.” Footnote As we have said, “‘a mere difference of opinion [between judges and legislators], where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable.’” Footnote At the same time, “[l]egislative action . . . is not without bounds.” Footnote In assessing challenges to the public education system under article VII, section 1, courts must not on the one hand substitute their policy choices for the Legislature’s, however undesirable the latter may appear, but must on the other hand examine the Legislature’s choices carefully to determine whether those choices meet the requirements of the Constitution. By steering this course, the Judiciary can assure that the people’s guarantees under the Constitution are protected without straying into the prerogatives of the Legislature.

Whether the statutory provisions creating the public school system are arbitrary and therefore unconstitutional is a question of law. Footnote To the extent that this determination rests on factual matters that are in dispute, we must, of course, rely entirely on the district court’s findings. But in deciding ultimately the constitutional issues, those findings have a limited role. Footnote

B

The framers of the Texas Constitution of 1876 premised their mandate of free public education on the axiom that “[a] general diffusion of knowledge [is] essential to the preservation of the liberties and rights of the people”. Footnote The delegates to the Constitutional Convention of 1875 were deeply divided over how best to provide for a general diffusion of knowledge, finally adopting article VII, section 1 by a vote of 55 to 25. Footnote No subject was more controversial Footnote or more extensively debated. Footnote Some believed that the job of educating the public should be done through private institutions rather than by public ones. Footnote Nearly all were for local control, having chafed under the centrally controlled schools of the Reconstruction Era. Many insisted on guaranteeing adequate funding sources, while others were concerned that the expense would overburden taxpayers. Footnote Still, none questioned that a general diffusion of knowledge was essential to self-governance. Footnote

The truth of the axiom had long been, and remains, beyond doubt. The framers may have borrowed the phrase from Thomas Jefferson’s 1778 draft of “A Bill for the More General Diffusion of Knowledge”, which provided for free public education in Virginia, observing that “the most effectual means of preventing [tyranny] would be, to illuminate, as far as practicable, the minds of the people at large”. Footnote George Washington used the same phrase a few years later in his 1796 farewell address, encouraging his countrymen:

Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened. Footnote

The importance of public education was also recognized on the frontier. In 1836, Texas declared its independence from Mexico, citing as one of the principal reasons that the Mexican government had —

failed to establish any public system of education, although possessed of almost boundless resources, (the public domain,) and although it is an axiom in political science that, unless a People are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self-government. Footnote

Adopted at the same time, Texas’ first Constitution provided: “It shall be the duty of Congress, as soon as circumstances will permit, to provide, by law, a general system of education.” Footnote

Under article VII, section 1 of the Constitution of 1876, the accomplishment of “a general diffusion of knowledge” is the standard by which the adequacy of the public education system is to be judged. Footnote To achieve such a system, the Legislature has chosen to use local school districts. Footnote Borrowing from two statutory pronouncements, the district court concluded:

To fulfill the constitutional obligation to provide a general diffusion of knowledge, districts must provide “all Texas children . . . access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and nation.” Tex. Educ. Code § 4.001(a) (emphasis added). Districts satisfy this constitutional obligation when they provide all of their students with a meaningful opportunity to acquire the essential knowledge and skills reflected in . . . curriculum requirements . . . such that upon graduation, students are prepared to “continue to learn in postsecondary educational, training, or employment settings.” Tex. Educ. Code § 28.001 (emphasis added) . . . .

We agree, with one caveat. The public education system need not operate perfectly; it is adequate if districts are reasonably able to provide their students the access and opportunity the district court described.

The system the Legislature has devised prescribes an education curriculum, and by means of accreditation standards, holds schools and districts accountable for teaching it. Schools and districts rated “academically acceptable” provide what we have referred to as an accredited education, and we have presumed, simply in deference to the Legislature, that such an education achieves a general diffusion of knowledge. Footnote The district court found that the plaintiffs and intervenors have rebutted this presumption. The court’s principal reasons, set out in detailed findings and conclusions, may be summarized as follows:

• TAKS tests (and other such tests) cover only a small part of the prescribed curriculum;



• the cut scores and passing rates for TAKS tests (or other such tests) are too low and are set, not to reliably measure achievement, but to ensure a low rate of failure;



• completion and dropout rates are understated and unreliable, in fact fewer than 75% of all students and 70% of minority students complete high school, and this high attrition, worse in larger districts, is unacceptable;



• other important factors in determining whether a general diffusion of knowledge has been achieved, like college preparedness of graduates, for example, are not considered in rating schools and districts “academically acceptable” and reflect unfavorably on the system;



• the requirements for an “academically acceptable” rating are set to assure, not that there will be a general diffusion of knowledge, but that almost every district will meet them;



• the prescribed curriculum and TAKS testing have been made more demanding while funding to satisfy statutory requirements has not kept pace, producing budget pressures that have resulted in —



• a shortage of qualified teachers, an increase in teachers having to teach outside their fields, and high attrition and turnover rates;



• difficulty in providing special programs and remediation for students at risk of not completing their education;



• there has also been a lack of funding to meet increased federal requirements, like the No Child Left Behind Act; Footnote



• the changing demographics of the student population — with a majority being economically disadvantaged, 15% having limited proficiency in English, and both groups continuing to grow — have increased education costs while funding has lagged;



• the I/R econometric study correctly shows that the cost of an accredited education exceeds available per-student revenue.

The State defendants contend that the district court focused too much on “inputs” to the public education system — that is, available resources. They argue that whether a general diffusion of knowledge has been accomplished depends entirely on “outputs” — the results of the educational process measured in student achievement. We agree that the constitutional standard is plainly result-oriented. It creates no duty to fund public education at any level other than what is required to achieve a general diffusion of knowledge. While the end-product of public education is related to the resources available for its use, the relationship is neither simple nor direct; public education can and often does improve with greater resources, just as it struggles when resources are withheld, but more money does not guarantee better schools or more educated students. To determine whether the system as a whole is providing for a general diffusion of knowledge, it is useful to consider how funding levels and mechanisms relate to better-educated students. This, we think, is all the district court did.

The State defendants also contend that the district court equated, erroneously, statutory expressions of the Legislature’s aspirational goals and “mission statements” with the constitutional standard. As we read the district court’s findings and conclusions, however, we think the court did no more than try to draw from statutory language the Legislature’s understanding of a general diffusion of knowledge. In section 4.001(a) of the Education Code, for example, the Legislature has expressly linked the stated mission of public education to the constitutional standard:

The mission of the public education system of this state is to ensure that all Texas children have access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and nation. That mission is grounded on the conviction that a general diffusion of knowledge is essential for the welfare of this state and for the preservation of the liberties and rights of citizens. Footnote

In section 28.001, the Legislature has labeled specific knowledge and skills “essential”, just as a general diffusion of knowledge is:

It is the intent of the legislature that the essential knowledge and skills developed by the State Board of Education under this subchapter shall require all students to demonstrate the knowledge and skills necessary to read, write, compute, problem solve, think critically, apply technology, and communicate across all subject areas. The essential knowledge and skills shall also prepare and enable all students to continue to learn in postsecondary educational, training, or employment settings. Footnote

These clear, affirmative statements cannot be dismissed as merely hopeful rhetoric; rather, the Legislature must be presumed to have chosen its words deliberately. Nor can these words be read to describe a public education system that the Legislature believes would not only meet but exceed constitutional requirements. The specific reference to the constitutional standard in section 4.001(a) and the repeated use of the word “essential” in section 28.001 does not allow it. To avoid improper policy-making of its own, the district court properly looked to legislative policy statements.

But while we think these statutory provisions properly inform the construction and application of the constitutional standard of a general diffusion of knowledge as understood by the Legislature, they cannot be used to fault a public education system that is working to meet their stated goals merely because it has not yet succeeded in doing so. The district court did not find that the system is so designed that it cannot accomplish a general diffusion of knowledge as defined by the statutory provisions just quoted. Rather, the district court found that the system is not producing a general diffusion of knowledge because the State has not provided sufficient funding.

In the extensive record before us, there is much evidence, which the district court credited, that many schools and districts are struggling to teach an increasingly demanding curriculum to a population with a growing number of disadvantaged students, yet without additional funding needed to meet these challenges. There are wide gaps in performance among student groups differentiated by race, proficiency in English, and economic advantage. Non-completion and dropout rates are high, and the loss of students who are struggling may make performance measures applied to those who continue appear better than they should. The rate of students meeting college preparedness standards is very low. There is also evidence of high attrition and turnover among teachers statewide, due to increasing demands and stagnant compensation. But the undisputed evidence is that standardized test scores have steadily improved over time, even while tests and curriculum have been made more difficult. By all admission, NAEP scores, which the district court did not mention, show that public education in Texas has improved relative to the other states. Having carefully reviewed the evidence and the district court’s findings, we cannot conclude that the Legislature has acted arbitrarily in structuring and funding the public education system so that school districts are not reasonably able to afford all students the access to education and the educational opportunity to accomplish a general diffusion of knowledge.

We recognize that the standard of arbitrariness we have applied is very deferential to the Legislature, but as we have explained, we believe that standard is what the Constitution requires. Nevertheless, the standard can be violated. There is substantial evidence, which again the district court credited, that the public education system has reached the point where continued improvement will not be possible absent significant change, whether that change take the form of increased funding, improved efficiencies, or better methods of education. Former Lieutenant Governor Ratliff, the author and principal sponsor of Senate Bill 7 in 1993, echoed the considered judgments of other witnesses at trial when he testified:

I am convinced that, just by my knowledge of the overall situation in Texas, school districts are virtually at the end of their resources, and to continue to raise the standards . . . is reaching a situation where we’re asking people to make bricks without straw. Footnote

But an impending constitutional violation is not an existing one, and it remains to be seen whether the system’s predicted drift toward constitutional inadequacy will be avoided by legislative reaction to widespread calls for changes.

C

The district court concluded that the public school funding system is inefficient in violation of article VII, section 1, but only in its provision of facilities for districts, not as the intervenors also claim, in its provision for the maintenance and operation of the schools. In Edgewood IV, we stated:

An efficient system of public education requires not only classroom instruction, but also the classrooms where that instruction is to take place. These components of an efficient system — instruction and facilities — are inseparable. Footnote

By this we meant not only that the constitutional requirement of efficiency applies to both instruction and facilities, but also that the requirement must be applied to the two components together. Article VII, section 1 requires “an efficient system of free public schools”, Footnote considering the system as a whole, not a system with efficient components. Accordingly, we consider (i) whether the inefficient provision of facilities found by the district court makes the entire system inefficient, or (ii) whether, as the intervenors contend, the system is inefficient for reasons apart from its provision of facilities.

For the system to be efficient, “‘districts must have substantially equal access to similar revenues per pupil at similar levels of tax effort.’” Footnote In the earlier appeal in this case, we explained:

Because constitutional efficiency does not require absolute equality of spending, we expressly acknowledged [in Edgewood I] that “local communities would [not] be precluded from supplementing an efficient system established by the legislature”, but we added that “any local enrichment must derive solely from local tax effort.” In other words, the constitutional standard of efficiency requires substantially equivalent access to revenue only up to a point, after which a local community can elect higher taxes to “supplement” and “enrich” its own schools. That point, of course, although we did not expressly say so in Edgewood I, is the achievement of an adequate school system as required by the Constitution. Once the Legislature has discharged its duty to provide an adequate school system for the State, a local district is free to provide enhanced public education opportunities if its residents vote to tax themselves at higher levels. The requirement of efficiency does not preclude local supplementation of schools. Footnote

The State defendants note that only one of the Alvarado ISD intervenors and none of the Edgewood ISD intervenors is rated “academically unacceptable”, and a third of the former and two of the latter have the higher “recognized” rating. Therefore, the State defendants argue, by providing an accredited education, the intervenors are providing for a general diffusion of knowledge, and “[a]bsent gross funding disparities akin to those invalidated by Edgewood I, a system that provides a general diffusion of knowledge is also presumptively efficient as a matter of law . . . . Because such enormous disparities do not exist today, the Court need not examine the system’s funding in detail . . . .”

The intervenors argue that significant funding disparities do exist and have worsened in the decade since we decided Edgewood IV, when we held that the system was “minimally acceptable only when viewed through the prism of history.” Footnote The intervenors point to the following:

• although 95% of public school funds are equalized through the FSP, 5% are not;



• the State tries to equalize revenue in districts with at least 85% of the student population, but it barely achieves this goal, while the Court in Edgewood II rejected a system that equalized revenue in districts with 95% of the student population;



• gaps in the available M&O revenue per student are worse than they were in Edgewood IV;



• the additional tax rate that poor districts must have to generate the same per-student revenue as wealthy districts has grown from $0.09 in Edgewood IV to $0.17.

The State defendants counter, in reverse order: that the tax-rate difference calculations of $0.09 in Edgewood IV versus $0.17 in this case are not comparable; that the per-student revenue gap in Edgewood IV would have been comparable to the gap today if “hold harmless” districts had not been excluded from the calculations; that the districts with 5% of the student population that were excluded from the funding system in Edgewood II resulted in far worse disparities; Footnote and that non-equalization of only 5% of funding is not significant. In all, the State defendants argue, the funding gaps cited by the intervenors are no worse than they were in Edgewood IV and do not render the entire system inefficient.

Given the closeness of the decision in Edgewood IV, the Court might well have reached a different conclusion had the “hold harmless” districts been presented as a permanent part of the system architecture. Now, however, it appears that the provisions favoring those districts reduce recaptured funds only about 4%. Although neither the State defendants nor the plaintiffs has made any effort to justify continuation of these districts, we cannot say that they render the entire system inefficient.

There is much evidence that many districts’ facilities are inadequate, but it is undisputed that some 25% of the districts levy no I&S taxes. The State defendants argue that disparities among districts in available facilities are not proof of inefficiency absent evidence that the districts’ needs are similar. They contend that facilities needs vary widely depending on the size and location of schools, construction expenses, and other variables. We agree that such evidence is necessary and lacking. The State defendants also argue that to prove constitutional inefficiency the intervenors must offer evidence of an inability to provide for a general diffusion of knowledge without additional facilities, and that they have failed to do so. Again, we agree. Efficiency requires only substantially equal access to revenue for facilities necessary for an adequate system.

The intervenors argue that constitutional efficiency does not permit substantially unequal access to funds to supplement an adequate education, but we have previously rejected this argument. In the earlier appeal in this case, we explained:

As long as efficiency is maintained, it is not unconstitutional for districts to supplement their programs with local funds, even if such funds are unmatched by state dollars and even if such funds are not subject to statewide recapture. We caution, however, that the amount of “supplementation” in the system cannot become so great that it, in effect, destroys the efficiency of the entire system. The danger is that what the Legislature today considers to be “supplementation” may tomorrow become necessary to satisfy the constitutional mandate for a general diffusion of knowledge. Footnote

Supplementation must be just that: additional revenue not required for an education that is constitutionally adequate. For such supplementation we have never held that districts must have substantially equal access to funds.

Accordingly, we conclude that the public school finance system is not inefficient in violation of article VII, section 1.

The dissent concludes that the public school system is inefficient because it is not competitive. Footnote The dissent complains that this case “once again focuses on short-term funding rather than long-term solutions” Footnote and asserts that the Court has applied constitutional efficiency to mean only “‘equal ability to raise taxes.’” Footnote With respect to the meaning of “efficiency”, the dissent is simply wrong. In Edgewood I, we said that “‘[e]fficient’ conveys the meaning of effective or productive of results and connotes the use of resources so as to produce results with little waste”. Footnote Efficiency implicates funding access issues, but it is certainly not limited to those issues. It is true that the plaintiffs and intervenors here have focused on funding, but parties to a lawsuit are entitled to choose the issues to be raised. We cannot dictate how the parties present their case or reject their contentions simply because we would prefer to address others. Perhaps, as the dissent contends, public education could benefit from more competition, but the parties have not raised this argument, and therefore we do not address it. The dissent calls a court that limits itself to the issues raised by the parties “a pushover”. Footnote We disagree. Here, even the State defendants do not criticize the plaintiffs and intervenors for failing to broaden their arguments to include other aspects of the public education system besides funding.

In Edgewood III, we explained that —

although the issues brought before us in Edgewood I, Edgewood II, and now Edgewood III, have all been limited to the financing of the public schools, as opposed to other aspects of their operation, money is not the only issue, nor is more money the only solution. . . . In Edgewood I we stated: “More money allocated under the present system would reduce some of the existing disparities between districts but would at best only postpone the reform that is necessary to make the system efficient.” 777 S.W.2d at 397. We are constrained by the arguments raised by the parties to address only issues of school finance. We have not been called upon to consider, for example, the improvements in education which could be realized by eliminating gross wastes in the bureaucratic administration of the system. The Legislature is not so restricted. Footnote

The Legislature may well find many ways of improving the efficiency and adequacy of public education — ways not urged by the parties to this case — that do not involve increased funding.

D

The district court concluded that the public education system is not “suitable” as required by article VII, section 1 Footnote for the same reason it concluded that the system is inadequate and inefficient, that is, because the funding is insufficient. Neither the court nor the parties have differentiated suitability from the constitutional standards of adequacy and efficiency, but the requirement of suitability is not merely redundant of the other two. Rather, it refers specifically to the means chosen to achieve an adequate education through an efficient system. For example, we indicated in our prior opinion in this case that if the funding system were efficient so that districts had substantially equal access to it, and the education system was adequate to provide for a general diffusion of knowledge, but districts were not actually required to provide an adequate education, “the Legislature’s use of districts to discharge its constitutional duty would not be suitable, since the Legislature would have employed a means that need not achieve its end.” Footnote In Edgewood IV, the property-rich districts argued that the State’s heavy reliance on local tax revenue was unsuitable. Footnote We rejected the argument, not because it misinterpreted the standard, but because the reliance on local revenue does not prevent the system from providing a general diffusion of knowledge:

Certainly, if the Legislature substantially defaulted on its responsibility such that Texas school children were denied access to that education needed to participate fully in the social, economic, and educational opportunities available in Texas, the “suitable provision” clause would be violated. The present record, however, does not reflect any such abdication. Footnote

Neither the structure nor the operation of the funding system prevents it from efficiently accomplishing a general diffusion of knowledge. The State may discharge its duty to make suitable provision for free public schools through school districts by relying on local tax revenues, even as heavily as it now does. Such reliance, especially given the multitude and diversity of school districts, inevitably makes it difficult to achieve efficiency because of the vast disparities in local property wealth, but efficiency is not impossible. We have suggested that these difficulties might be avoided by fundamental changes in the structure of the system, but the possibility of improvement does not render the present system unsuitable for adequately and efficiently providing a public education. Accordingly, we conclude that the system does not violate the constitutional requirement of suitability.

IV

The final constitutional question is whether the State’s control of local taxation for education amounts to a state property tax in violation of article VIII, section 1-e. We agree with the district court that it does.

As we have set out above, local tax rates have increased markedly since 1993-1994. Then, only 2% of the districts, with 1% of the students, were taxing at the $1.50 maximum M&O rate; now, 48% of the districts, with 59% of the students, are taxing at the cap, and 67% of the districts, with 81% of the students, are taxing at or above $1.45. In 1993-1994, 90% of the districts, with 85% of the students, had tax rates below $1.40; that group has now shrunk to 20% of the districts, with 10% of the students. The State defendants acknowledge this shift but argue that school districts tax at or near maximum rates in order to generate revenue for local supplementation and discretionary purposes, not because State requirements for an accredited education force them to do so. The State defendants point to instances in which school districts:

• have made budget cuts without losing accreditation, demonstrating that not all the revenue generated at maximum tax rates is necessary to provide an accredited education;



• have provided educational programs not required for an accredited education;



• maintain an optimum fund balance — a reserve of funds — for contingencies;



• have chosen to raise teacher salaries above the state-mandated minimum; and



• have voluntarily increased homestead exemptions. Footnote

The State defendants argue that because school districts exercise some discretion in taxing and spending for education, the plaintiffs’ claim that local taxes have become a state property tax is disproved as a matter of law.

We held in Edgewood III that “[a]n ad valorem tax is a state tax . . . when the State so completely controls the levy, assessment and disbursement of revenue, either directly or indirectly, that the authority employed is without meaningful discretion.” Footnote In that case, the State’s control of county education district taxation was direct and absolute, but we did not limit our holding to that situation. We stated that there was “a spectrum of other possibilities” along which varying degrees of state control might fall, and we rejected the argument that the State could circumvent the constitutional prohibition of a state property tax merely by slight variations in the degree of that control:

Each case must necessarily turn on its own particulars. Although parsing the differences may be likened to dancing on the head of a pin, it is the Legislature which has created the pin, summoned the dancers, and called the tune. The Legislature can avoid these constitutional conundra by choosing another path altogether. Footnote

While the Legislature did abandon the system of county educational districts after Edgewood III, the system adopted by Senate Bill 7 allows the possibility of the same constitutional violation by setting maximum tax rates. We explained in Edgewood IV:

However, if the cost of providing for a general diffusion of knowledge continues to rise, as it surely will, the minimum rate at which a district must tax will also rise. Eventually, some districts may be forced to tax at the maximum allowable rate just to provide a general diffusion of knowledge. If a cap on tax rates were to become in effect a floor as well as a ceiling, the conclusion that the Legislature had set a statewide ad valorem tax would appear to be unavoidable because the districts would then have lost all meaningful discretion in setting the tax rate. Footnote

The State defendants in this case have taken a rigid view of this admonition, arguing that there is no constitutional violation unless all school districts, or at least most of them, are required to tax at the absolute maximum rate for no other reason than to provide an accredited education. In our earlier opinion in this case, we rejected the argument that impermissible state control depended on the number of districts affected. “The concern,” we said, “is not the pervasiveness of the tax but the State’s control of it.” Footnote We also rejected the argument that districts must be forced absolutely to the limit of the cap. Footnote The issue, we emphasized, is the lack of meaningful discretion. Footnote

The dissent takes a position similar to the State defendants’, arguing that there can be no state ad valorem tax unless districts are absolutely forced to tax at maximum rates, and that “each and every district must prove it had no other choice.” Footnote This misstates the test. If a district were absolutely forced to tax at the maximum rate, it would lack not just meaningful discretion, it would lack any discretion whatsoever. Moreover, the dissent’s requirement that a district be left with no choices ignores the realities of the education process. The State does not mandate the expenditures necessary for accreditation; rather, it leaves largely to school districts the decisions on how best to expend education funds to achieve accreditation. Those decisions involve professional judgment and experience, and the methods of meeting accreditation standards vary depending on student demographics and school location. It is simply impossible to trace the impact on accreditation of each dollar spent for programs and teacher salaries. Recognizing these realities, we observed in Edgewood III that State influence on district taxing and spending cannot be measured exactly but must be gauged along a spectrum of possibilities. Footnote

Meaningful discretion cannot be quantified; it is an admittedly imprecise standard. But we think its application in this case is not a close question. The district court found that the plaintiffs’ “focus districts” for which evidence was offered “lack ‘meaningful discretion’ in setting their local property tax rates.” Contrary to the dissent’s assertion, this finding was supported by evidence other than conclusory opinions of district superintendents. The district court detailed evidence showing how the districts are struggling to maintain accreditation with increasing standards, a demographically diverse and changing student population, and fewer qualified teachers, while cutting budgets even further. The district court found that due to inadequate funding: 52.8% of the newly hired teachers in 2002 were not certified, up from 14.1% in 1996; more teachers were being required to teach outside their areas of expertise; and attrition and turnover were growing. The court cited the higher costs of educating economically disadvantaged students and students with limited English proficiency, noting that 90% of the growth in the student population has come from low-income families. And as set out in more detail above, the district court noted the increased curriculum, testing, and accreditation standards, and the increased costs of meeting them. These are facts, not opinions. The State defendants point to evidence of some discretionary spending on programs not essential to accreditation, but there is also evidence that such programs are important to keeping students in school.

The State defendants point out that though facing increased challenges, the focus districts have met or exceeded all accreditation requirements, but importantly, one cannot infer from that fact that the districts could lower taxes and still meet those requirements. The district court credited evidence that districts statewide are spending over 97% of the revenue that would be available if every district taxed at maximum rates, up from 83% in 1993-1994. Only about a third of the districts with about a fifth of the student population exceed minimum accreditation standards. Footnote This is a marked decline from 2001, when over 60% of the districts with well over half of the student population exceeded minimum accreditation standards. Footnote The current situation has become virtually indistinguishable from one in which the State simply set an ad valorem tax rate of $1.50 and redistributed the revenue to the districts.

The State also controls the expenditure of more than $1 billion in local tax revenues recaptured from 134 districts, which educate 12.3% of the students, requiring that they be effectively redistributed to the other districts. The number of districts and amount of revenue subject to recapture have almost tripled since 1994. The State’s control of this local revenue is a significant factor in considering whether local taxes have become a state property tax.

The dissent argues that the plaintiffs cannot prove that local ad valorem taxes have become a state property tax with evidence that most districts now tax at maximum rates when few did ten years ago, or that virtually all of the revenue available through local taxes is now being spent, or that among school districts at maximum tax rates accreditation rates have declined, or that the State controls the redistribution of more than $1 billion in local taxes. Footnote Even if each category of evidence would not, by itself, prove a constitutional violation, all of this evidence taken together, along with the extensive record before us, clearly shows that school districts have lost meaningful discretion to tax below maximum rates and still provide an accredited education. In reaching this conclusion, we do not alter any standard we have previously announced, as the dissent charges, or adopt positions the Court has previously rejected, as the dissent suggests. The question, as we stated in Edgewood III, is whether school districts have meaningful discretion to tax below maximum rates, and the answer is that they do not.

The district court also determined that the maximum tax rate for purposes of this analysis should be $1.35 rather than $1.50 because school districts must have $0.15 of tax rate — 10% of the maximum — available for local supplementation. Thus, in the district court’s view, almost all school districts are taxing at maximum rates. The State defendants object that districts have no constitutional right to local supplementation, and therefore such expenditures should not be considered in determining whether school districts have meaningful discretion to tax below maximum rates. We agree that local supplementation is not a constitutional right, but it is part of the purpose of FSP funding. Section 42.301 of the Education Code states in part: “The purpose of the guaranteed yield component [Tier II] of the Foundation School Program is to provide each school district with the opportunity to provide the basic program and to supplement that program at a level of its own choice.” Footnote Although the statute does not promise any particular level of supplemental funding, local supplementation is made a core component of the system structure, necessitated by the basic philosophy of the virtue of local control. The State cannot provide for local supplementation, pressure most of the districts by increasing accreditation standards in an environment of increasing costs to tax at maximum rates in order to afford any supplementation at all, and then argue that it is not controlling local tax rates.

Accordingly, we conclude that the public school finance system violates article VIII, section 1-e of the Texas Constitution. Various legislative proposals during the past year to remedy perceived problems with the public education system and its funding would reduce the maximum ad valorem tax rate and allow it to be exceeded for certain purposes. While we express no view on the appropriateness of any of these proposals, we are constrained to caution, as we have before, that a cap to which districts are inexorably forced by educational requirements and economic necessities, as they have been under Senate Bill 7, will in short order violate the prohibition of a state property tax.

V

We come at last to the issue of the relief to be granted. The dissent argues, although the State defendants do not, that the district court’s injunction was overbroad and is not warranted by our holding. The dissent argues that only the statute which caps ad valorem tax rates at $1.50, section 45.003(d) of the Education Code, should be enjoined, and only in those districts that are forced by accreditation requirements to tax at maximum rates. Footnote The dissent contends that the district court’s injunction impacts districts where no constitutional violation has been shown and “looks too much like ‘enjoin now and worry later’”. Footnote

It is worth repeating that the dissent again raises an argument the State defendants have not made themselves. The dissent ignores the central role of the $1.50 cap in the public education finance system. The FSP guarantees state funding to property-poor districts only up to a maximum tax rate of $1.50. Footnote Thus, a property-poor district allowed to tax above the maximum rate would not be entitled to FSP Tier 2 guaranteed yield funding at a higher rate. Property-rich districts allowed to tax above the maximum rate would be entitled to keep all of the revenue generated. If property-poor districts needed no additional revenue to provide an adequate education, there would be no constitutional violation. Footnote But for districts that need additional revenue, the funding system would be inefficient. The equalization necessary for efficiency that the combination of the FSP, the tax rate cap, and recapture is intended to effectuate would be destroyed if the cap were removed. This would create a structural flaw in the system itself, just as if the basic allotment and guaranteed yield of the FSP were significantly reduced.

The tax rate cap that makes the public education funding system a state property tax is also intended to keep the system efficient. The two roles of the cap are inseparable. To remove the cap so as to allow districts meaningful discretion in setting tax rates at higher levels would be to increase the revenue disparity among the property-rich and the property-poor districts, creating the financial inefficiency that the cap is intended to prevent. Local ad valorem taxes, which we have determined to be a prohibited state property tax, provide more than half the revenue for the public school system. The constitutional violation cannot be corrected without raising the cap on local tax rates or changing the system.

The Constitution does not require a particular solution. We leave such matters to the discretion of the Legislature. To end the constitutional violation, we agree with the district court that the use of the current system must be enjoined. The district court delayed the effect of its injunction until October 1, 2005, to allow the Legislature time to respond. Since the injunction issued, the Legislature has undertaken to respond in a regular session and two special sessions. Its inability to do so appears to be due not to any lack of expertise in the issues but to the absence of agreement. At this point in time, it is unlikely that material changes could be made in the public education system that would affect the current school year. School districts will next begin to prepare budgets and set tax rates in the summer of 2006. Footnote To allow the State ample time to fully consider structural changes in the public education system, and to allow the system time to adjust to those changes, we postpone the effective date of the district court’s injunction to June 1, 2006.

VI

The district court awarded the plaintiffs and intervenors attorney fees under the Declaratory Judgments Act. Footnote As we have said:

[T]he Declaratory Judgments Act entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law. Footnote

Because we have concluded that the plaintiffs are entitled to only a part of the relief granted by the district court, and that the intervenors are entitled to no relief, we reverse the award of attorney fees and remand the case to the district court to reconsider what award of attorney fees, if any, is appropriate. We express no opinion on this issue.

* * * * *

More than half a century ago, in Brown v. Board of Education, the United States Supreme Court wrote:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Footnote

Since then, especially in this Information Age, education as a fundamental basis for our future has grown by orders of magnitude.

More than thirty years ago, in San Antonio Independent School District v. Rodriguez, the first case to challenge the constitutionality of the public school finance system in Texas, the United States Supreme Court stated:

The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them. Footnote

As we have said since Edgewood I, structural changes, and not merely increased funding, are needed in the public education system to meet the constitutional challenges that have been raised.

The judgment of the district court is reversed insofar as it declares a violation of article VII, section 1, and awards attorney fees and costs, and the issue of attorney fees and costs is remanded to the trial court. The effective date of the injunction is modified to June 1, 2006. In all other respects, the judgment is affirmed in accordance with this opinion.

So ordered.





Nathan L. Hecht

Justice

Opinion issued: November 22, 2005