Opinion
No. 25151.
March 8, 1968.
James J. Hippard, Houston, Tex., for appellant.
Lloyd F. Thanhouser, Joe H. Reynolds, Houston, Tex., for appellees; Reynolds, White, Allen Cook, Houston, Tex., of counsel.
Before RIVES, GEWIN and THORNBERRY, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of Texas denying appellant's motion for summary judgment and granting the motion of appellees to dismiss. In its suit the appellant sought to compel appellees to rent a school auditorium to it without requiring the execution of a nonsubversive oath as a prerequisite. It was alleged that the oath requirement was violative of the First and Fourteenth Amendments to the Constitution of the United States.
While this appeal was pending in this Court the Supreme Court of the United States, on January 15, 1968, affirmed the judgment of the United States District Court for the Northern District of Texas which held the statute upon which the oath was based to be unconstitutional. James v. Gilmore, 389 U.S. 572, 88 S.Ct. 695, 19 L.Ed.2d 783, Gilmore v. James, 274 F. Supp. 75, 90-93. Thereafter the appellees changed the policy relating to the rental of public school facilities to outside groups and organizations. The oath to which appellant objected in its suit is no longer required.
The affirmance is without opinion. The per curiam states: "The motion to affirm is granted and the judgment is affirmed."
The appellees have filed a motion to dismiss this appeal as moot. In view of the foregoing decision in James v. Gilmore, supra, the action taken by the Board of Education of the Houston Independent School District and the status of the record presently before us, we have concluded that the case is now moot and the motion to dismiss is granted.
The judgment of the District Court is vacated and the case is remanded to the District Court with directions to dismiss the complaint without prejudice, and to tax all costs against the appellees.
Vacated and remanded with directions.