Henry Moreau and Geraldine Moreau v. Avoyelles Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1613

HENRY MOREAU AND
GERALINE MOREAU, ET AL.

VERSUS

AVOYELLES PARISH SCHOOL BOARD

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
PARISH OF AVOYELLES, NO. 2004-6842-B,
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Chief Judge Ulysses G. Thibodeaux and Jimmie C. Peters and
Marc T. Amy, Judges.

AFFIRMED.

Rodney M. Rabalais
Attorney at Law
Post Office Box 447
Marksville, LA 71351
(318) 253-4622
COUNSEL FOR PLAINTIFFS/APPELLEES:
Henry and Geraline Moreau, et al.

Rémy V. Starns
Attorney at Law
Post Office Box 231
Logansport, LA 71049
(318) 697-9400

COUNSEL FOR DEFENDANT/APPELLANT:
Avoyelles Parish School Board

Richard B. Easterling
450 Laurel Street, Suite 1900
Baton Rouge, LA 70801
(225) 336-5200
AMICUS CURIAE COUNSEL FOR:
Louisiana Charter School Association

Robert L. Hammonds
Hammonds & Sills
Post Office Box 65236
Baton Rouge, LA 70896
(225) 923-3462
AMICUS CURIAE COUNSEL FOR:
Louisiana School Boards Association

PETERS, J.

The Avoyelles Public Charter School (Charter School) and a number of

Avoyelles Parish residents and taxpayers who are also parents1 of children attending

the Charter School filed a mandamus action against the Avoyelles Parish School

Board (School Board), seeking, among other relief, an order compelling the School

Board to provide free transportation to and from the Charter School for its students

who live more than one mile from the school. The School Board responded to this

suit by filing an answer, a motion to require the plaintiffs to post a bond, and four

exceptions. Following a hearing, the trial court rejected the School Board’s motion

for bond and all of the exceptions and issued the requested writ.2 The trial court then

designated the judgment as a final judgment for the purposes of appeal, and the

School Board timely perfected this appeal, asserting three assignments of error. The

plaintiffs answered the appeal, seeking an award of attorney fees for the work

performed on appeal.3 For the following reasons, we affirm the trial court’s judgment

in all respects and reject the plaintiffs’ request for an award of attorney fees.

DISCUSSION OF THE RECORD AND UNDISPUTED FACTS

The Charter School and the parents filed the mandamus action on September

2, 2004, and the trial court disposed of the exceptions and preliminary motion and

granted the writ of mandamus at a September 9, 2004 hearing. The hearing produced

a sparse evidentiary record, but certain matters are not disputed by the parties.

The basic law applicable to the dispute now before us is found in the General

1
The other plaintiffs were identified as Henry and Geraline Moreau, Douglas and C.C.
Ducote, Joey and Donna Ledet, Bill and Angel Cazelot, Brent and Melissa Landry, Jonathan and
Kim Dupree, Patrick and Erica Barton, Dale and Debra Dupuy, and David and Monica Johnson.
2
In this appeal, the School Board questions only the trial court’s ruling on the mandamus
application and two of the exceptions.
3
The Louisiana School Boards Association filed an amicus curiae brief in this matter as did
the Louisiana Charter School Association.

School Law, La.R.S. 17:1, et seq. That series of statutes creates, among other legal

entities, the Louisiana State Board of Elementary and Secondary Education (BESE

Board) as a corporate body with supervisory authority over the state educational

system in such matters as administration, educational curriculum, teacher

certification, testing procedures, organization, services, and finances. La.R.S. 17:1,

6, and 7. It also creates parish school boards as corporate bodies with authority to

administer the public schools within their territorial jurisdictions. La.R.S. 17:51, et

seq.4 The School Board derives its existence from this statutory authority.

The Charter School Demonstration Programs Law, enacted by 1997 La. Acts

No. 477, § 1, is found in the General School Law at La.R.S 17:3971, et seq. Its

purpose is to provide the educational community with a framework for creative

educational experimentation designed to improve the overall educational system.

La.R.S. 17:3972. When originally enacted, La.R.S. 17:3973(2) provided for the

creation of four types of charter schools.5 Of the four types, only the Type 2 charter

school does not provide for the local school board’s involvement as a party to the

charter agreement creating the school. La.R.S. 17:3973(2)(b). Its existence is based

on a charter entered into between the BESE Board and a nonprofit corporation formed

to operate the school. La.R.S. 17:3973(2)(b)(ii). Thus, a Type 2 charter school is the

exception to the general rule that the local school board has the administrative

authority over the public schools within its jurisdictional boundaries. The Charter

School is a Type 2 school, and it opened its doors in Avoyelles Parish in the fall of

2000. By the beginning of the 2004 academic year, it had expanded its activities to

4
The original authority for the creation of parish school boards was found in Article XII,
Section 10, of the Louisiana Constitution of 1921 and was retained in La.Const. art. VIII, § 9.
5
The legislature added a fifth type of charter school by 2003 La. Acts No. 9, § 1, effective
November 6, 2003, by adding La.R.S. 17:3973(2)(b)(v) to La.R.S. 17:3973.

2

offer educational opportunities to students from kindergarten through the ninth grade.

Initially, the School Board provided the Charter School students free

transportation to and from school, but from the beginning the two legal entities were

at odds concerning the cost of this transportation and the party responsible for that

cost. Because the School Board and the Charter School were unable to reach an

agreement on this issue, on May 11, 2004, the School Board applied to the BESE

Board for relief from its transportation obligation.

In the first sentence of its application to the BESE Board, the School Board

stated: “Please accept this letter as the School Board’s formal request that BESE

exercise its authority pursuant to Statute and excuse the School Board from providing

free transportation to the Avoyelles Public Charter School (‘Charter School’) for

economically justifiable reasons.” However, in summarizing the request for relief at

the end of the application, the School Board stated the following:

BESE can and should exercise its authority pursuant to La.R.S.
17:158H and excuse the Avoyelles Parish School Board from any free
transportation requirement regarding pupils of the Avoyelles Public
Charter School for economically justifiable reasons and allow the
Avoyelles Parish School Board to charge its actual costs, $3.36 per
pupil per day, in remuneration for its services.

(Emphasis added.)

The BESE Board heard the application on June 17, 2004, and, on that day, took

the matter under advisement and issued an interim ruling as follows:

On motion of Dr. Stafford, seconded by Ms. Johnson, the Board directed
that the Department request an Attorney General’s Opinion concerning
the authority of BESE to authorize a local school district to charge a fee
to transport students to a charter school pursuant to R.S. 17:158.
Avoyelles Parish shall continue to provide transportation to the
Avoyelles Public Charter School pending the Attorney General Opinion.
Further, the Board directed BESE staff to provide a list of the school
systems that are currently providing transportation to a charter school,
what schools systems are charging a fee, and the amount for

3

transportation.

(Emphasis added.)

With the 2004-2005 academic year fast approaching, the School Board chose

not to follow the directive of the BESE Board or to await the BESE Board decision

on its application for relief. Instead, in August of 2004, the School Board advised the

Charter School that, unless it agreed to pay the School Board the amount it was

demanding for transportation costs on or before September 17, 2004, all

transportation services furnished by the School Board to the Charter School would

be terminated effective that date. This unilateral action on the part of the School

Board prompted the filing of the instant suit, and it was on this state of affairs that the

application for mandamus was heard.

In its three assignments of error asserted on appeal, the School Board argues

that the trial court erred in (1) issuing the writ of mandamus because the School

Board owes no transportation obligation to the Charter School, (2) rejecting its

exception of no cause of action, and (3) rejecting its exception of no right of action.

OPINION

The evidence presented at trial consisted of a number of exhibits and a

stipulation by the parties to the effect that (1) the School Board had applied to the

BESE Board to obtain approval to charge the Charter School for transportation

services; (2) the BESE Board heard the application on June 17, 2004, and took it

under advisement after passing the resolution previously described; and (3) at the

time of the hearing on the mandamus application, the BESE Board had not acted on

the application.6 Based on the exhibits, the stipulation, and the remainder of the

6
The litigants asserted at oral argument that the BESE Board has yet to rule on the School
Board’s application.

4

record, the trial court rendered its decision.

Assignment of Error Number One

The Charter School’s and the parents’ legal basis for seeking the writ of

mandamus, and the trial court’s reason for granting the relief, is La.R.S.

17:158(A)(1), which provides:

Except as provided by Subsection H of this Section and in
accordance with the requirements of Subsection F of this Section, each
parish and city school board shall provide free transportation for any
student attending a school of suitable grade approved by the State Board
of Elementary and Secondary Education within the jurisdictional
boundaries of the parish or school board if the student resides more than
one mile from such school.

(Emphasis added.)

By definition, a charter school is “an independent public school that provides a

program of elementary or secondary education, or both, established pursuant to and

in accordance with [La.R.S. 17:3791, et seq.,] to provide a learning environment that

will improve pupil achievement.” La.R.S. 17:3973(2)(a) (emphasis added).

Additionally, because its very existence is derived from a charter entered into with

the BESE Board pursuant to La.R.S. 17:3973(2)(b)(ii), one cannot reasonably argue

that a Type 2 charter school is not approved by the BESE Board.

In fact, the School Board acknowledges that the Charter School is a BESE

Board approved public school. The School Board further acknowledges that

Louisiana has a long-standing recognition of the right of elementary and secondary

students and their parents to a free education and that included within that concept is

the right to free transportation to and from school. Instead, it asserts that a reading

of other provisions of the General School Law makes it clear that the legislature never

intended for local school boards to absorb the cost of providing the expected free

5

transportation for charter school students. Thus, the issue presented to us involves

strictly a matter of law. Appellate review of questions of law is to determine whether

the trial court’s interpretive decision is legally correct. Forum for Equality PAC v.

McKeithen, 04-2477, 04-2523 (La. 1/19/05), ___ So.2d ___. Statutory interpretation

is performed as required by civil code articles, statutes, and well-established

jurisprudential rules.

“These rules of statutory construction are designed to ascertain and enforce the

intent of the legislature in enacting the statute.” SWAT 24 Shreveport Bossier, Inc.

v. Bond, 00-1695, p. 11 (La. 6/29/01), 808 So.2d 294, 302. The fundamental

question in all cases of statutory construction is legislative intent and the reasons that

prompted the legislature to enact the law. Succession of Boyter, 99-0761 (La. 1/7/00),

756 So.2d 1122. When a law is clear and unambiguous and its application does not

lead to absurd consequences, it shall be applied as written, with no further

interpretation made in search of the legislative intent. La.Civ.Code art. 9; La.R.S.

1:4. However, when a law is susceptible of different meanings, “it must be

interpreted as having the meaning that best conforms to the purpose of the law.”

La.Civ.Code art. 10.

The meaning and intent of a law is determined by considering the law in its

entirety and all other laws concerning the same subject matter and construing the

provision in a manner that is consistent with the express terms of the statute and with

the obvious intent of the lawmaker in enacting it. Boyter, 756 So.2d 1122. The

statute must therefore be applied and interpreted in a manner that is logical and

consistent with the presumed fair purpose and intention the legislature had in enacting

it. Id. Courts should give effect to all parts of a statute and should not adopt a

6

statutory construction that makes any part superfluous or meaningless, if that result

can be avoided. Id. Furthermore, “‘the object of the court in construing a statute is

to ascertain the legislative intent and, where a literal interpretation would produce

absurd consequences, the letter must give way to the spirit of the law and the statute

construed so as to produce a reasonable result.’ Smith v. Flournoy, 238 La. 432,

[447,] 115 So.2d 809, 814 (1959), reh’g denied.” First Nat’l Bank of Boston v.

Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95), 650 So.2d 1148, 1153. With these

concepts in mind, we turn to the analysis of the School Board’s first assignment of

error.

To fully determine the proper interpretation of La.R.S. 17:158(A)(1), we must

first consider the content of the entire statute, and particularly the two subsections

referenced therein. The second of these two subsections, La.R.S. 17:158(F), extends

the free transportation obligation of the school board “to eligible public and

nonpublic school students,” but excludes “any student . . . who attends a school which

discriminates on the basis of race, creed, color, or national origin.” The remaining

subsection, La.R.S. 17:158(H), recognizes that a school board may suffer a financial

hardship in fulfilling the free transportation mandate and therefore provides a

procedure by which a school board may seek relief from that obligation. Louisiana

Revised Statutes 17:158(H)(1) provides:

No parish or city school board shall eliminate or reduce the level
of transportation services provided to students as required by the
provisions of this Section except for economically justifiable reasons
approved in accordance with the provisions of this Subsection by the
State Board of Elementary and Secondary Education.

(Emphasis added.)

Louisiana Revised Statutes 17:158(H)(2) details the information a school board

7

must submit to the BESE Board to be considered for relief from its transportation

obligation, and La.R.S. 17:158(H)(3) provides for the action to be taken by the BESE

Board. The latter provision provides as follows:

The State Board of Elementary and Secondary Education shall
take under review and consideration any request by a parish or city
school board for approval to reduce or eliminate student transportation
services submitted in compliance with the provisions of this Subsection,
however no such approval shall be granted by the board until the state
superintendent of education has certified the accuracy and validity of the
information submitted by the parish or city school board.

In its statutory scheme, La.R.S. 17:158 also addresses the hardship that may be

imposed on a student and his family if the BESE Board grants a local school board’s

request to be relieved of its obligation to provide that student with transportation to

and from school. Louisiana Revised Statutes 17:158(C) provides:

If transportation is not provided by the parish or city school board
by reason of economically justifiable reasons approved by the State
Board of Elementary and Secondary Education in accordance with the
provisions of Subsection H of this Section, the Department of
Education, in accordance with the provisions of Subsection D hereof,
shall reimburse the parent or tutor of any student who resides more than
one mile from the school attended by the student to the extent and in the
amounts that funds are so appropriated by the legislature, but in no event
shall such reimbursement exceed one hundred twenty-five dollars per
student or three hundred seventy-five dollars for any one family.

Louisiana Revised Statutes 17:158(D) simply provides the mechanism by which a

claim for reimbursement can be asserted.

Thus, La.R.S. 17:158 provides a scheme whereby a city or parish school board

is required to provide all students (1) who attend a BESE Board approved elementary

or secondary school within its jurisdictional boundaries and (2) who live more than

one mile from that school with free transportation to and from the school. The free

transportation requirement extends to all approved schools within the jurisdictional

boundaries and is not limited to those schools under the administration of the local

8

school board. La.R.S. 17:158(F). The only permissible non-fiscal reason for denying

this free transportation right to all eligible students is if the school involved

discriminates against anyone on the basis of race, creed, color, or national origin. Id.

In a situation where this free transportation obligation creates a financial hardship on

the local school board, it can apply to the BESE Board for relief from its obligation.

La.R.S. 17:158(H)(1). In the event the local school board is successful in obtaining

relief from the BESE Board, the statute further provides a mechanism by which the

student denied free public transportation can be reimbursed for the necessary

transportation expenses. La.R.S. 17:158(C) and (D). The trial court found that, when

construing La.R.S. 17:158 in its entirety, the legislature clearly and unambiguously

intended to impose the free transportation burden on the local school board, but to

provide a relief mechanism from that burden if the school board could convince the

BESE Board that it had economically justifiable reasons to eliminate or reduce the

level of transportation to eligible students.

At trial and on appeal, the School Board asserts that La.R.S. 17:158 is not clear

and unambiguous when read in conjunction with other provisions of the General

School Law, specifically La.R.S. 17:3991(D) and La.R.S. 17:1990(B)(3). As we

appreciate the School Board’s argument, it asserts that the trial court erred in

concluding that the reference to “eligible” students in La.R.S. 17:158(F) simply refers

to those students who meet the requirements set forth in La.R.S. 17:158(A)(1).

According to the School Board’s argument, the insertion of “eligible” in La.R.S.

17:158(F) indicated an intent on the part of the legislature to graft an additional

condition on a school board’s free transportation requirement. That requirement,

according to the School Board, is the furnishing by the legislature of sufficient funds

9

to the local school board to pay for the added transportation costs for students not

under the school board’s administrative umbrella. Absent that funding, the School

Board argues, it has no statutory duty to provide charter school students with free

transportation.7

The first of the two statutes that the School Board asserts supports its

argument, La.R.S. 17:3991(D), is a part of the Charter School Demonstration

Programs Law. In its entirety, La.R.S. 17:3991 sets forth the requirements and

limitations of charter schools and provides a procedure for the renewal of, amendment

to, or revocation of the school’s charter. The subsection at issue provides:

A charter school may negotiate with the local school board in
whose jurisdiction it is located for use of facilities and the operation and
maintenance thereof, for pupil transportation, and for other support
services provided by the board to other public schools in the system.

La.R.S. 17:3991(D) (emphasis added).

The School Board suggests that the reference to “pupil transportation” indicates the

legislature’s intent to require charter schools to pay for transportation to and from

school. In other words, La.R.S. 17:3991(D) would not be necessary if the legislature

intended for the school board to furnish free transportation pursuant to La.R.S.

17:158(A)(1). We disagree with this interpretation.

We first note that the language of La.R.S. 17:158(A)(1) is mandatory, while the

language of La.R.S. 17:3991(D) is discretionary. Additionally, while La.R.S.

17:158(A)(1) addresses the specific issue of transportation to and from school,

La.R.S. 17:3991(D) addresses the general issue of “pupil transportation” and “other

support services.” As previously discussed, the concept of free education in

7
The record now before us does not contain sufficient evidence to determine the exact
financial status of the litigants, including the extent of state funding. However, the evaluation of the
funding issue is not necessary to resolve the issues on appeal.

10

Louisiana includes as a primary element the transportation to and from school. We

interpret the legislative intent of La.R.S. 17:3991(D) to be the providing of supportive

transportation services such as for field trips and athletic events. We are unable to

read La.R.S. 17:3991(D) as evidence that the legislature intended to deprive charter

school students of the same benefit of free transportation to and from school provided

to other public and nonpublic school students.

Nor do we find that the School Board’s reliance on La.R.S. 17:1990(B)(3)

supports its position. Louisiana Revised Statutes 17:1990 was added to the General

School Law by 2003 La. Acts No. 9, § 1, effective November 6, 2003, and establishes

Recovery School Districts.8 These are school districts whose purpose is “to provide

an appropriate education for children attending any public elementary or secondary

school operated under” an existing school system that has failed to meet the

accountability standards set forth in La.R.S. 17:10.5. La.R.S. 17:1990(A)(1). When

a failing school is removed from an existing school system and transferred to the

Recovery School District, it is operated as a Type 5 charter school. La.R.S.

17:3973(2)(b)(v)(aa). Louisiana Revised Statutes 17:1990(B)(3) provides that the

Recovery School District “may require” the local school board whose system failed

to meet the accountability standards “to provide school support or student support

services . . . including but not limited to student transportation” and that “[i]f a

dispute arises between the school district and the system providing such services

regarding the cost of such services to be reimbursed, the commissioner of

administration or his designee shall determine the cost to be reimbursed.” (Emphasis

added.) The School Board points to this provision as further evidence that the

8
As mentioned in footnote 5, the same Act created the fifth type of charter school by adding
La.R.S. 17:3973(2)(b)(v) to La.R.S. 17:3973.

11

legislature never intended for a local school board to provide free transportation to

charter school students under La.R.S. 17:158(A)(1).

We disagree with the School Board’s position in this regard. Far from the

meaning suggested by the School Board, La.R.S. 17:1990(B)(3), in our opinion,

reinforces the view that La.R.S. 17:158(A)(1) applies to all charter schools except

Type 5 charter schools. Had the legislature intended for transportation for Type 2

charter schools to be contingent on the legislature fronting the costs of such

transportation, or the charter school paying that cost, it would simply have said so as

it did in the case of Type 5 charter schools.

In summary, as did the trial court, we find no conflict between the obligation

imposed by La.R.S. 17:158(A)(1) and either La.R.S. 17:3991(D) or La.R.S.

17:1990(B)(3). Nor do we place any significance on the fact that the statutes creating

charter schools and Recovery School Districts were enacted years after the last

amendment to La.R.S. 17:158. The School Board suggests in argument that these

latter expressions of the legislative will must be construed in light of the fact that,

before their enactment, the legislature had no need to consider their impact on the

finances of a local school board. While the legislature may not have contemplated

the existence of charter schools or Recovery School Districts when considering prior

amendments to La.R.S. 17:158, it obviously considered the financial impact that a

school not under the school board’s jurisdiction might have on a local school board

by providing the relief still available in La.R.S. 17:158(H). In other words, the

legislature has provided the School Board with a procedure by which it can seek relief

from its obligation imposed by La.R.S. 17:158(A)(1).

The very limited issue before the trial court, and now before this court, is not

12

whether the School Board is ultimately entitled to relief from its obligation to

transport the Charter School students to and from school. That is a decision to be

made by the BESE Board pursuant to La.R.S. 17:158(H). This court, as was the trial

court, is faced (1) with undisputed proof that the Charter School is a BESE Board

approved school, (2) with no evidence that it is guilty of any discriminatory activities

prohibited by La.R.S. 17:158(F), (3) with the knowledge that the BESE Board has

taken the School Board’s request for relief pursuant to La.R.S. 17:158(H) under

advisement, and (4) with proof that the BESE Board has instructed the School Board

to continue providing free transportation to the Charter School students pending its

decision. Accordingly, the issue presented to the trial court was whether, based on

the pleadings, the evidence, and the law, the School Board presently has a ministerial

duty to provide free transportation to pupils attending the Charter School who live

more than one mile from the school, as provided in La.R.S. 17:158(A)(1) and (F).

The trial court concluded that because the BESE Board had not authorized the School

Board to reduce or eliminate the level of transportation services to the Charter School

required by La.R.S. 17:158(A)(1), and because the Charter School met all of the

requirements of La.R.S. 17:158(A)(1) and (F), the School Board’s mandatory duty

under La.R.S. 17:158(A)(1) remained in effect. Accordingly, the trial court issued

the writ of mandamus.

We find, as did the trial court, that this is an appropriate case for the remedy

of mandamus. The delay involved in obtaining ordinary relief would have deprived

the students of transportation to their school, a clear injustice. See La.Code Civ.P. art.

3862. When the duty required by law is ministerial, a writ of mandamus may be

issued to compel its performance. La.Code Civ.P. art. 3863. The duty required by

13

General School Law La.R.S. 17:158(A)(1) is a ministerial function. The School

Board has no discretion in the matter. Only BESE can relieve it of its obligations

under the statute, and BESE has not acted. Therefore, we find no error in the trial

court’s ruling and find no merit in this assignment of error.

Assignment of Error Number Two

In its second assignment of error, the School Board argues that the trial court

erred in not granting its exception of no cause of action. The authority for filing a

peremptory exception of no cause of action is found in La.Code Civ.P. art. 927(A)(4).

The function of an exception of no cause of action is to test the
legal sufficiency of the petition by determining whether the law affords
a remedy on the facts alleged in the pleading. No evidence may be
introduced to support or controvert the objection that the petition fails
to state a cause of action. The court reviews the petition and accepts
well-pleaded allegations of fact as true, and the issue at the trial of the
exception is whether, on the face of the petition, the plaintiff is legally
entitled to the relief sought.

Pittman v. Beebe, 95-1342, p. 4 (La.App. 3 Cir. 3/6/96), 670 So.2d 761, 763, writ
denied, 96-0882 (La. 5/10/96), 672 So.2d 931.

The School Board’s principal argument is that because the Charter School and

Charter School parents rely on the provisions of La.R.S. 17:158(A)(1) for relief, and

because that statute does not apply to charter schools, the petition does not state a

cause of action. In making this argument, the School Board suggests that the petition

is also deficient in that it does not allege that the School Board had been provided

state funds for the cost of transporting the Charter School students. Because we have

already concluded that La.R.S. 17:158(A)(1) does apply to charter school students,

and because we find no corresponding requirement that the state provide funds to pay

the costs of the mandated transportation, we find no merit in this assignment of error.

Assignment of Error Number Three

14

In its final assignment of error, the School Board asserts that the Charter

School and the parents have no right of action. The authority for filing a peremptory

exception of no right of action is found in La.Code Civ.P. art. 927(A)(5), and its

function is to determine whether the plaintiff or plaintiffs belong to the class of

persons to whom the law grants the cause of action asserted in the suit. Turner v.

Busby, 03-3444 (La. 9/9/04), 883 So.2d 412; Fritsche v. Vermilion Parish Hosp. Serv.

Dist. #2, 04-1192 (La.App. 3 Cir. 2/2/05), ___ So.2d ___. “The court of appeal

reviews exceptions of no right of action de novo.” Id. at ___.

The beneficiary of the free transportation La.R.S. 17:158 requires school

boards to provide is “any student” meeting the eligibility standards of the section.

The parents of minor, unemancipated students are the proper persons to sue to enforce

their rights. La.Code Civ.P. art. 683. Thus, the parents named as plaintiffs in this

litigation have a right of action.

The Charter School also has a right of action. It is a nonprofit corporation

under applicable state and federal laws. La.R.S. 17:3991(A)(1)(a). It is authorized

to exercise any power and perform any function necessary, requisite, or proper for its

management not denied by its charter, the provisions of Chapter 42 of the General

School Law, or other laws applicable to a charter school. La.R.S. 17:3991(A)(2). A

Type 2 school is funded by the state. La.R.S. 17:3995(A)(1). Its budget requirements

are the same as any other political subdivision of the state, and it is required annually

to submit a budget to the state superintendent of education. La.R.S. 17:3996(G). As

we have previously discussed, it is empowered to negotiate with the local school

board in whose jurisdiction it is located for use of facilities and the operation and

maintenance thereof, for pupil transportation, and for other support services provided

15

by the board for other public schools in the system. Clearly, seeing to it that its

students are given the free transportation to and from school to which they are entitled

is part of the business of a Type 2 charter school. We find no merit in this assignment

of error.

The Answer to the Appeal

In their answer to the School Board’s appeal, the Charter School and the

parents seek an award of attorney fees for obtaining the writ of mandamus. In support

of their request, they direct us to the decisions in Perron v. Evangeline Parish Police

Jury, 01-0603 (La. 10/16/01), 798 So.2d 67, and Plaisance v. Davis, 03-0767

(La.App. 1 Cir. 11/7/03), 868 So.2d 711, writ denied, 03-3362 (La. 2/13/04), 867

So.2d 699.

Perron involved a suit by a coroner who sought a writ of mandamus to compel

the police jury to provide proper funding for his office. The supreme court found that

an attorney fee award was a necessary expense incidental to the operation and

functioning of his office. Plaisance involved a city court judge who sought a writ of

mandamus to compel the city to issue his paycheck. The court of appeal affirmed an

award of attorney fees, and, in doing so, relied on the decision in Perron.

We find these cases distinguishable from the matter now before us. Both of

those decisions were based on special statutes requiring the public body to bear the

expenses of operation and maintenance of the respective offices. That is to say, both

cases involved actions to properly fund the office. In the present case, there is no

statute that requires a local school board to fund charter schools. Funding is the

responsibility of the state. Attorney fees are not recoverable unless expressly

provided for by statute or contract. Quealy v. Paine, Webber, Jackson & Curtis, Inc.,

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475 So.2d 756 (La.1985); Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.

7/1/97), 696 So.2d 1382. Finding no statutory or contractual authority for the award

of attorney fees, we deny the relief requested in the answer to the appeal.

DISPOSITION

For the reasons set forth herein, we affirm the trial court’s judgment in all

respects. We assign all costs of this appeal to the Avoyelles Parish School Board.

We further deny the Avoyelles Public Charter School’s demand for attorney fees and

assess all costs of that demand to the Avoyelles Public Charter School and the

plaintiff-parents.

AFFIRMED.

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