COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00105-CV

NORTHWEST INDEPENDENT 

SCHOOL DISTRICT

APPELLANT

V.

CARROLL INDEPENDENT 

SCHOOL DISTRICT

APPELLEE

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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

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OPINION ON APPELLEE’S MOTION FOR EN BANC 

RECONSIDERATION

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After considering Carroll Independent School District’s motion for en banc 

reconsideration and appellant Northwest Independent School District’s response, 

we grant the motion. We withdraw our prior opinion of February 16, 2012 and 

substitute the following.
2

Background

Carroll Independent School District (CISD) sued Northwest Independent 

School District (NWISD) alleging a boundary dispute with NWISD. The parties 

disagreed over the location of the boundary line between the two districts when 

other litigation between their relative counties was resolved. See Tarrant Cnty. v. 

Denton Cnty., 87 S.W.3d 159 (Tex. App.—Fort Worth 2002, pet. denied) (op. on 

reh’g), disapproved on other grounds by Martin v. Amerman, 133 S.W.3d 262 

(Tex. 2004). As a result of that litigation, the two counties’ boundary line was 

definitively marked on the ground to reflect the counties’ previous agreements; 

this resulted in the school districts’ long-honored boundary line—since 19591

—

being somewhat south of the counties’ previously-agreed boundary line. Id. at 

179–80; Carroll ISD v. Nw. ISD, 245 S.W.3d 620, 622–23 (Tex. App.—Fort 

Worth 2008, pet. denied). Thus, CISD claimed the school districts’ line should 

move with the counties’ line because the districts’ line had been tied to the 

Tarrant-Denton boundary line.2 Carroll ISD, 245 S.W.3d at 623. This would 

have expanded CISD’s district into NWISD’s territory, an area we will call the 

Disputed Area as the parties have in some of their briefing to this court. See id. 

In an effort to protect itself, NWISD filed the long-existing districts’ boundary line 

 1

NWISD’s boundary was set in 1949. CISD’s was set in 1959.

2

When both school districts were created, the descriptions of their common 

boundary referenced only the then-existing Tarrant County-Denton County 

boundary line as their boundary line as opposed to a metes and bounds 

description.
3

metes and bounds description with the Texas Education Agency in accordance 

with the Texas Education Code. See Tex. Educ. Code Ann. § 13.010 (West 

2012). CISD filed suit against NWISD in March 2005 claiming jurisdiction over 

the Disputed Area via trespass to try title and declaratory judgment actions. 

Carroll ISD, 245 S.W.3d at 623.

Shortly thereafter, NWISD filed a motion to dismiss CISD’s suit for want of 

jurisdiction, which the trial court granted. Id. The trial court based its decision 

primarily on its conclusion that the dispute between the two districts was a 

boundary dispute that should first be determined by the “appropriate authority or 

authorities as required by the Texas Education Code” and that jurisdiction did not 

lie in the district court until the parties had first pursued their administrative 

remedies. Id.

CISD filed an interlocutory appeal challenging the dismissal of its claims 

against NWISD, and our court issued an opinion reversing the trial court’s 

decision to dismiss and remanding the case to the trial court. Id. at 626. In that

opinion, we specifically held that the Texas Education Code did not apply 

because one district was not seeking to actually detach or annex additional 

property into its district, which would have required TEA oversight, but was 

instead seeking a judicial declaration of the “parties’ rights, interests, and 

obligations” as to the Disputed Area and the location of its boundary, which could 

be appropriately resolved through a declaratory judgment action. Id. at 625–26.
4

In our opinion, we also held that CISD is a “person” for purposes of the 

Declaratory Judgments Act and that dismissal for lack of jurisdiction on that 

ground was improper. Id. at 625; see Tex. Civ. Prac. & Rem. Code Ann. 

§§ 37.001, 37.004(a), (c) (West 2008). Furthermore, we addressed NWISD’s 

attack on the trial court’s jurisdiction based on its theory that the validity of 

annexation of territory can only be determined by a quo warranto proceeding. 

We disagreed with this basis for the jurisdictional plea as well, noting that the two 

school districts were merely in a boundary dispute, not attempting to annex 

additional territory. Carroll ISD, 245 S.W.3d at 626.

Upon remand, after the parties had conducted further discovery of the 

jurisdictional facts and filed amended pleadings, NWISD filed an additional plea 

to the jurisdiction seeking dismissal, which the trial court denied. NWISD also 

filed a motion for summary judgment, which the trial court granted as to CISD’s 

claims for loss of tax revenue and for trespass to try title. After NWISD filed its 

second plea to the jurisdiction and motion for summary judgment, CISD further 

amended its petition to assert additional grounds for relief, which required

NWISD to file a supplemental second plea to the jurisdiction that the trial court

also denied. Thus, in this interlocutory appeal, NWISD is the appealing party and 

is challenging the trial court’s denial of its supplemental plea to the jurisdiction.

Does the Law of the Case Doctrine Apply?

In two of its three issues, NWISD challenges two legal conclusions already 

decided by this court in the first interlocutory appeal brought by CISD: that the 
5

trial court did not lack jurisdiction (1) because CISD was not required to follow the 

Texas Education Code’s administrative procedure for detaching and annexing 

property inasmuch as it is not seeking to detach and annex property and 

(2) because CISD is included in the definition of “person” in the Declaratory 

Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011; Carroll ISD, 

245 S.W.3d at 624–25. Because these two issues have been decided previously 

by this court, our first opinion in this case constitutes the “law of the case” and 

determines the resolution of NWISD’s first two issues.

Under this doctrine, a decision rendered in a former appeal of a case is 

generally binding in a later appeal of the same case. In re Assurances 

Generales Banque Nationale, 334 S.W.3d 323, 325 (Tex. App.—Dallas 2010, 

orig. proceeding); see In re Henry, 388 S.W.3d 719, 727 (Tex. App.—Houston 

[1st Dist.] 2012, orig. proceeding [mand. denied]); Truck Ins. Exch. v. Robertson, 

89 S.W.3d 261, 264 (Tex. App.—Fort Worth 2002, no pet.). Having decided an 

issue previously, a court of appeals is not obligated to reconsider the matter in 

subsequent appeals. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 

177, 182 (Tex. 2012); see also In re Henry, 388 S.W.3d at 727; In re Assurances 

Generales Banque Nationale, 334 S.W.3d at 325; Woods v. VanDevender, 296 

S.W.3d 275, 279 (Tex. App.—Beaumont 2009, pet. denied) (all citing Briscoe v. 

Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)). It may do so in its own 

discretion, however, and there is not an absolute bar to reconsideration if 

subsequent hearings, briefing, or pleadings have modified the facts or relief 
6

sought. See Briscoe, 102 S.W.3d at 716–17. When, however, the jurisdictional 

issue is really one of law, our discretion to revisit the issue will be used sparingly, 

if at all. See, e.g., In re Henry, 388 S.W.3d at 728; City of Dallas v. Jones, 331 

S.W.3d 781, 784–85 (Tex. App.—Dallas 2010, pet. dism’d). Regardless, our 

review of the record and the revised pleadings leads us to decline the invitation 

to revisit these issues since the issues relate to questions of law. NWISD’s first 

and second issues are therefore overruled.3

Is This a Collateral Attack on Prior Elections and County Commission 

Orders?

In its third issue, NWISD claims the trial court lacked jurisdiction because 

CISD’s suit is “an untimely contest and collateral attack of the [district’s] 1948 

and 1949 elections and [commissioners courts’] orders creating [NWISD] and its 

boundaries.” We did not address this issue in our 2008 opinion; therefore, we 

address it now.

NWISD claims that CISD’s request for a declaratory judgment is simply a 

means to an end that circumvents the proper regulatory scheme.

Use of Declaratory Judgments Act When Boundary Involved or Judgment 

Questioned

After we issued our opinion in Tarrant County v. Denton County, our 

state’s supreme court issued its opinion in Martin v. Amerman, which held a 

 3

We will, however, address NWISD’s refinements of its arguments against 

the applicability of the Declaratory Judgments Act that are contained within its

third issue below.
7

portion of our opinion invalid, stating that the use of the Declaratory Judgments

Act to decide a boundary determination was incorrect and that a boundary 

dispute could be resolved by one method only: a trespass to try title action. 

Martin, 133 S.W.3d at 267–68 (holding trespass to try title statute governs 

method for determining title to real property and boundaries as well), superseded 

by Tex. Civ. Prac. & Rem. Code Ann. § 37.004(c) (reversing Martin’s holding that 

relief under the Act is unavailable for boundary disputes). Quickly, however, the 

state legislature overruled Martin by adding subsection (c) to section 37.004 of 

the Declaratory Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. § 37.004(c). 

This provision authorizes a party to seek a determination on the construction of 

“a statute, municipal ordinance, contract, or franchise” even when the only

determination concerning title to real property involves the “proper boundary line 

between adjoining properties.” Id. § 37.004(a), (c) (emphasis added); see Act of 

May 17, 2007, 80th Leg., R.S., ch. 305, § 1, 2007 Tex. Gen. Laws 581, 581

(adding subsection (c) effective June 15, 2007).

NWISD misconstrues the impact of the legislature’s revision to section 

37.004. Subsection (c) does not say that one may now only seek a 

determination of a boundary line under the Declaratory Judgments Act if one is 

seeking a determination of title. It says simply and only that if one is seeking a 

determination of title, then notwithstanding that fact, one may seek a 

determination or declaration of a boundary under the Declaratory Judgments Act. 

Tex. Civ. Prac. & Rem. Code Ann. § 37.004(c). In other words, if determining a 
8

boundary line may also result in declaring title to real property, a party is no 

longer prohibited from seeking a declaration of rights under the Declaratory 

Judgments Act instead of solely under the property code’s trespass to try title 

scheme as the supreme court had previously declared. See Martin, 133 S.W.3d 

at 267–68. The legislation simply removed the prohibition, based on the 

supreme court’s construction of the Act in Martin, against using the Act to 

determine boundaries.4

 Therefore, we conclude that the determination of a 

boundary is no longer a disqualifier under the Act, even when title may be 

affected.

NWISD also claims that because the case was filed before the effective 

date of the amendment to section 37.004, the amendment cannot apply to 

CISD’s action. This claim is incorrect for two reasons. First, after the original 

remand which reversed the trial court’s grant of a dismissal, the parties 

underwent further discovery, and CISD amended its suit after the amendment’s 

effective date, June 15, 2007.

5

 Secondly, even if the first petition was filed 

 4

We do, however, agree with NWISD that many Texas cases have 

erroneously and perpetually confused the use of the term “boundary” for both a 

boundary line that actually determines title, i.e., ownership of real property, and a 

state or political subdivision boundary line that merely determines “territory.” 

Thus, NWISD is correct when it states that this is not a boundary line dispute that 

involves actual title to, and therefore ownership of, land; it is a boundary dispute 

that involves the boundary between two independent school districts and the 

areas to be governed, educated, and taxed by each.

5

The enacting legislation states that the amendment “takes effect 

immediately.” Act of May 17, 2007, 80th Leg., R.S., ch. 305, § 2, 2007 Tex. Gen. 

Laws 581, 581.
9

before the amendment’s effective date, applying procedural, remedial, or 

jurisdictional statutes retroactively does not violate the Texas constitution’s 

prohibition on retroactive laws. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of 

Arancibia, 324 S.W.3d 544, 548 (Tex. 2010). While we generally presume that 

statutes are prospective unless they are expressly made retroactive, procedural 

and remedial laws generally do not affect vested rights and should be enforced 

as they exist at the time judgment is rendered. City of Austin v. Whittington, 384 

S.W.3d 766, 790 (Tex. 2012); Tex. Mun. Power Agency v. Pub. Util. Comm’n of 

Tex., 253 S.W.3d 184, 198 (Tex. 2007); see also Tex. Gov’t Code Ann. §

311.022 (West 2013). Additionally, statutes that do not deprive the litigants of a 

substantive right but speak more to the power of the court may generally be 

applied at the time of enactment to a pending case. Estate of Arancibia, 324 

S.W.3d at 548. The Declaratory Judgments Act is such a remedial statute. See 

MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 670 (Tex. 

2009). We conclude and hold that because the Declaratory Judgments Act is 

remedial in nature, the revision to section 37.004(c) may be applied to pending 

cases.

Next, NWISD claims that the Declaratory Judgments Act cannot be used to 

declare parties’ rights under the statutes and ordinances here simply because it 

does not list the word “judgment” in its list of items that may be construed under 

the Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (a), (b). Again, we 

disagree.
10

When called upon to determine the meaning and scope of a statutory 

provision, our primary objective is to ascertain and give effect to the legislature’s 

intent. Tex. Gov’t Code Ann. § 312.005 (West 2013); TGS-NOPEC Geophysical 

Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We look to the plain and 

ordinary meaning and the words of the statute itself as the best indicator of 

legislative intent. Bouldin v. Bexar Cnty. Sheriff’s Civ. Serv. Comm’n, 12 S.W.3d 

527, 529 (Tex. App.—San Antonio 1999, no pet.). We may consider the object to 

be attained and the consequences of a particular construction, among other 

things. Tex. Gov’t Code Ann. § 311.023 (West 2013); see also In re Smith, 333 

S.W.3d 582, 588 (Tex. 2011) (orig. proceeding).

First, the Act specifically authorizes the use of the courts to declare parties’ 

rights under a written contract or “other writings constituting a contract.” Tex. 

Civ. Prac. & Rem. Code Ann. § 37.004(a). NWISD was the creation of the 

commissioners courts of Tarrant, Wise, and Denton Counties after elections held 

in each of those counties approved the consolidation of some of their school 

districts. Likewise, ten years later, the Tarrant County Commissioners Court also 

created CISD and entered its order adopting the voters’ election to create it. The 

order creating CISD refers to its northern boundary as the Tarrant-Denton 

County line, thus honoring the previously declared southern boundary for 

NWISD, which Tarrant County voted for and approved. Arguably, these elections 

and commissioners courts’ orders fall generally within the Act’s phrase of “other 

writings constituting a contract.” Id.
11

Second, the Declaratory Judgments Act specifically authorizes 

determinations of “rights, status, or other legal relations” under “statute[s], 

ordinance[s], contract[s], or franchise[s].” Id. The Act allows an interested 

person to have his or her rights, status or legal relations determined when they 

arise under such instruments, statutes, ordinances, or franchises. Id. Also, we 

have already held that the word “person” includes independent school districts. 

Carroll ISD, 245 S.W.3d at 625. Thus, a school district may have its rights or 

legal relations declared under the Act. Tex. Civ. Prac. & Rem. Code Ann. 

§ 37.004(a).

Moreover, courts apply the rule of ejusdem generis so that a listing of 

several items does not necessarily exclude others of a similar kind or class 

unless the listing is clearly intended to be exclusive.6

 And, importantly, the Act 

itself specifically states, “The enumerations in Sections 37.004 and 37.005 do not 

limit or restrict the exercise of the general powers conferred in this section in any 

proceeding in which declaratory relief is sought and a judgment or decree will 

terminate the controversy or remove an uncertainty.” Id. § 37.003(c) (emphasis 

added). This directive evidences a clear legislative intent to construe the 

enumerations broadly so as to allow the courts to exercise the powers conferred 

by the statute. See id. § 37.002(b) (providing that Act is “to be liberally construed 

and administered”). Importantly, the resolution of a dispute such as this would

 6

See Black’s Law Dictionary 594 (9th ed. 2009).
12

“terminate the controversy” and “remove an uncertainty,” thus meeting the stated 

legislative goals. See id. § 37.003(c).

We therefore conclude and hold that the Declaratory Judgments Act 

applies when, as here, a school district seeks to resolve a controversy regarding 

a judgment or order issued by a commissioners court even though the words 

“judgment” and “order” are not contained within the specific enumerations listed 

in the Act.

Is This a Prohibited Election Contest or Collateral Attack?

NWISD further claims that even if CISD is a person within the meaning of 

the Declaratory Judgments Act, and even if the Act encompasses a 

determination of the rights or status of a person under such a judgment or order, 

the Act cannot apply because CISD’s claim is still a collateral attack on the 

elections held by the two school districts in adopting their boundary and their

respective territories, as well as the orders issued to implement those elections.

It points to sections 233.001 through 233.014 of the Texas Election Code. 

Tex. Elec. Code Ann. §§ 233.001–.014 (West 2010). NWISD argues that the 

elections creating the district that were held in 1948 and 1949 established 

NWISD’s boundaries and that to challenge those elections, CISD must have 

timely filed a notice of the contest. We agree with NWISD. There are multiple 

reasons why CISD cannot pursue an election contest now.

First, CISD is not a proper party to challenge the election held by NWISD; 

only qualified voters “of the territory covered by an election on a measure may 
13

contest the election.” Id. § 233.002. Second, the time for filing a petition to 

contest such an election has long passed. Id. § 233.006. Any contest must be 

brought within thirty days of the date the official result is determined, which is an 

obvious and fatal impediment in this case. See id.

Furthermore, and more importantly, the result of an election that has not 

been challenged by a proper contest cannot be collaterally attacked, and the 

“commissioners’ court [order] declaring the result of the election is final.” Horn v. 

Gibson, 352 S.W.3d 511, 517 (Tex. App.—Fort Worth 2011, pet. denied). Thus, 

we conclude and hold that to the extent CISD is attempting to contest an 

election, this suit is both a defective and untimely contest of that election. We 

sustain this portion of NWISD’s third issue.

We now turn to whether CISD’s suit is also an invalid collateral attack on 

the orders resulting from the election. A collateral attack is an “attempt to avoid 

the effect of a judgment in a proceeding brought for some other purpose. A 

direct attack on a judgment, conversely, is an attempt to change that judgment in 

a proceeding brought for that specific purpose, such as an appeal or a bill of 

review.” Burgess v. State, 313 S.W.3d 844, 852 n.10 (Tex. App.—Fort Worth 

2010, no pet.). This court has previously held that collateral attacks on prior 

judgments or orders adopting election results are prohibited, especially when no 

prior appeal or challenge to such judgments has been made. Tarrant Cnty., 87 

S.W.3d at 174 (citing Yoakum Cnty. v. Gaines Cnty., 163 S.W.2d 393, 396–97 

(Tex. 1942)); cf. Tarrant Cnty. v. Shannon, 104 S.W.2d 4, 9 (Tex. 1937)
14

(recognizing that judgments of commissioners courts are coequal with judgments 

of other courts and district court may review those judgments only for lack of 

jurisdiction or clear abuse of discretion of scope of legal authority). There was no 

such timely challenge here. The districts’ agreements or commissioners courts’ 

orders were not questioned until this challenge. Cities, counties, and political 

subdivisions act through their elections, ordinances, and agreements and the 

orders or judgments they create to implement the same. Killam Ranch Props., 

Ltd. v. Webb Cnty., 376 S.W.3d 146, 154 (Tex. App.—San Antonio 2012, pet. 

denied) (op. on reh’g); Amaro v. Wilson Cnty., 398 S.W.3d 780, 785 (Tex. App.—

San Antonio 2011, no pet.). But in this case, as opposed to Tarrant County v. 

Denton County, in which a party was seeking to avoid the previously agreed

upon orders, a fact has changed that makes a term in the agreement ambiguous: 

the parties are seeking a clarification or determination of the meaning of a phrase 

in their agreements as a result of an event that happened years after the parties 

entered into the agreements and entered orders implementing those results. In 

other words, postjudgment events have created an ambiguity in their orders that 

makes the enforcement of such orders uncertain at best. Neither party may seek

the nullification or avoidance of their agreements, orders, or judgments that 

resulted therefrom, but they may seek an interpretation or clarification of those

agreements, orders, and judgments when external factors have made such 

interpretations uncertain. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI 
15

Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (defining latent ambiguity as one 

arising from a collateral matter as applied to the contract).

If, however, CISD is seeking to avoid the result of the 1948 and 1949 

elections and orders by now claiming the Disputed Area, despite its 

acquiescence for over sixty years, then we agree that this would be both a 

defective, untimely election contest and an impermissible collateral attack on the 

commissioners courts’ orders certifying the election results that created NWISD 

and established its boundary. As noted in NWISD’s motion for summary 

judgment, “A declaratory judgment action is intended to establish existing rights, 

status, or other legal relationships” and is not to “be used as an affirmative 

ground of recovery to alter rights, status or relationships.” We agree that one 

cannot do by a declaratory judgment action what one cannot otherwise do. See 

Bonham State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex. 1995); Segrest v. 

Segrest, 649 S.W.2d 610, 611–12 (Tex.), cert. denied, 464 U.S. 894 (1983).

However, if the suit for declaratory relief is really just one to clarify a term 

incorporated into both commissioners courts’ agreements, and therefore the 

judgments and orders they both entered, then this narrow objective or request for 

relief is properly addressed in a declaratory judgment action.

Responses to Concurring and Dissenting Opinions

In response to Justice Dauphinot’s concurring and dissenting opinion, we

respectfully disagree that the majority’s remand expands the relief available to 

CISD. The majority opinion limits the relief available to CISD only to locate the 
16

existing sixty-year-old boundary line between the districts. In CISD’s fifth 

amended petition filed February 17, 2010, it stated,

CISD contends that the common boundary between the two school 

districts is located on the county line, as determined by Tarrant 

County v. Denton County[.] . . .

. . . Plaintiff CISD seeks a declaratory judgment that the 

common boundary between CISD and NWISD lives along the 

Tarrant/Denton County line as determined by Tarrant County v. 

Denton County . . . .

The answer to this question necessarily encompasses a declaration of 

where the sixty-year boundary has been located and is located. Our remand is 

limited to that determination and is therefore properly provided for in this narrow 

remand: i.e., where is the actual line that both parties agreed to, voted on, 

approved, adopted, and have recognized for sixty years?

Regarding Justice Gardner’s concurring and dissenting opinion, the 

majority opinion does not conflict with the prior opinion in this case or in our 

Tarrant County v. Denton County case. We agree with our prior opinion in this 

case by saying that whether CISD couches its suit for declaratory judgment relief 

as an attempt to determine where the common boundary line is—as it did in its 

pleadings below—or as an attempt to annex the Disputed Area (which we 

previously stated it could not do), this opinion actually reaffirms and recognizes 

our prior opinions. Since CISD says it was not seeking to annex additional 

territory into its district in the first suit, the issue of jurisdiction to hear that action 

was not implicated. But in some respects, the lawsuit on appeal now specifically 
17

requests to move the line from where the parties “historically thought the 

[boundary] line was.” The majority opinion is simply recognizing that if the 

schools’ common boundary line is now moved, the result is an annexation of the 

Disputed Area, which we previously held CISD cannot now do.

Therefore, we hold that if the objective is to challenge the prior elections or 

to change or modify the judgments or orders of the commissioners courts by 

seeking authority to actually move the districts’ sixty-year-old boundary line and 

thus transfer the Disputed Area from one independent school district to another, 

then such would be an impermissible election contest and an invalid collateral 

attack via a declaratory judgment action. We hold that upon remand the only 

proper avenue of declaratory judgment relief is to seek a clarification of the

actual, on-the-ground location of the long-existing boundary between the two 

school districts.

We overrule the balance of NWISD’s third issue on appeal.

We affirm the trial court’s denial of NWISD’s plea to the jurisdiction to the 

limited extent that CISD seeks a declaratory judgment regarding the parties’ 

orders and judgments creating their existing respective school districts’ sixty-year 

actual boundary location. Because we sustain NWISD’s third issue to the extent 

CISD seeks to contest and challenge NWISD’s 1948 and 1949 elections and the 

orders creating NWISD and its boundaries, in an attempt to move the existing 

boundary, we reverse the trial court’s denial of NWISD’s plea to the jurisdiction 
18

as to that contest and challenge. Therefore, we remand the case to the trial 

court for trial on the limited basis set forth in this opinion.7

/s/ Terrie Livingston

TERRIE LIVINGSTON

CHIEF JUSTICE

EN BANC

DAUPHINOT, J., filed a concurring and dissenting opinion.

GARDNER, J., filed a concurring and dissenting opinion in which WALKER and 

GABRIEL, JJ., join.

DELIVERED: June 19, 2014

 7

Six of the justices agree that NWISD may proceed in the trial court on a 

declaratory judgment action to clarify the school districts’ existing sixty-year 

actual boundary location: Chief Justice Terrie Livingston, Justice Anne Gardner, 

Justice Sue Walker, Justice Bob McCoy, Justice Bill Meier, and Justice Lee 

Gabriel. Additionally, four justices agree that the trial court does not have 

jurisdiction to hear any claim regarding an attempt to move the existing boundary 

by disputing the result of the 1948 and 1949 elections and subsequent 

commissioners courts’ orders: Chief Justice Terrie Livingston, Justice Lee Ann 

Dauphinot, Justice Bob McCoy, and Justice Bill Meier. Accordingly, a majority of 

the justices agree to remand for the trial court to consider CISD’s declaratory 

judgment claim regarding clarification of the boundary line between the two 

districts.