Deaver v. Bridges, 04-00-00478-CV

• Decision Date: 13 December 2000
• Docket Number: No. 04-00-00478-CV,04-00-00478-CV
• Citation: 47 S.W.3d 549
• Parties: (Tex.App.-San Antonio 2000) David DEAVER, Individually and in His Official Capacity as Superintendent of Menard Independent School District, Appellant v. Loretta BRIDGES, Appellee
• Court: Texas Court of Appeals

Page 549

47 S.W.3d 549 (Tex.App.-San Antonio 2000)

David DEAVER, Individually and in His Official Capacity as Superintendent of Menard Independent School District, Appellant v. Loretta BRIDGES, Appellee

No. 04-00-00478-CV

Court of Appeals of Texas, San Antonio.

December 13, 2000

Rehearing Overruled February 20, 2001.

From the 198th Judicial District Court, Menard County, Texas Trial Court No. 98-4618 Honorable Charles Sherrill, Judge Presiding

Sitting: Tom Rickhoff, Justice Catherine Stone, Justice Sarah B. Duncan, Justice

Opinion

Tom Rickhoff, Justice

This school teacher's defamation case is an interlocutory appeal from the trial court's order denying summary judgment to appellant, David Deaver, a school superintendent. To determine whether immunity attaches for professional employees, we hold we must focus on whether discretionary judgments occur within the broad duties of an office rather than on specific acts such as responding to media and third party inquiries. With this focus in mind, we reverse and render judgment in Deaver's favor.

JURISDICTION AND STANDARD OF REVIEW

As a preliminary matter, this Court has jurisdiction to consider this interlocutory appeal under Civil Practice and Remedies Code section 51.014(a)(5) because it is an appeal from the denial of "a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state[.]"

Whether an order grants or denies a motion for summary judgment, we apply the same de novo standard of review on appeal. San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex. App. San Antonio 1996, no writ). We will uphold a summary judgment only if the record establishes that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

A defendant who conclusively establishes all the elements of an affirmative defense is entitled to summary judgment. Cathey, 900 S.W.2d at 341. Once a movant establishes its right to summary judgment on the basis of an affirmative defense, the nonmovant must respond with reasons for avoiding summary judgment and must support those reasons with proof sufficient to raise a fact issue. Brooks v. Center for Healthcare Services, 981 S.W.2d 279, 281 (Tex. App. San Antonio 1998, no pet.). If the nonmovant responds with proof of a basis for avoiding the movant's affirmative defense, the movant then has the burden to negate the plaintiff's ground for avoidance as a matter of law. See id.

BACKGROUND

Deaver is the Superintendent of the Menard Independent School District ("MISD"). Appellee, Loretta Bridges, was employed by MISD as a teacher under a two-year contract for the period of August 1997 through May 1999. In March 1998, MISD recommended that Bridges' contract be terminated based on allegations that she made a racially derogatory comment about a public school student, and that she intentionally exposed the student to disparagement. Bridges appealed the recommendation, and requested an administrative hearing. An independent hearing examiner, appointed by the Texas Education Agency, concluded that MISD's proposed termination of Bridges' contract was arbitrary, capricious, and not supported by the evidence.

On August 10 1998, Bridges and MISD entered into a Compromise Settlement Agreement and Full and Final Release of All Claims, under which Bridges agreed to resign. Deaver did not attend the August 10 Board of Trustees' closed session meeting at which the settlement agreement was negotiated. The agreement was signed by Bridges and Margorie Russell, President of the MISD Board of Trustees. The agreement contained the following provision:

[Bridges] will direct any and all employment inquiries to the Superintendent's Office, and then the [MISD] agrees that the Superintendent will respond to all inquiries about [Bridges] from prospective employers or other persons by providing ONLY dates of [Bridges'] employment by the [MISD], the capacity in which she was employed, the fact that she resigned, and a copy of the reference letter evidenced by Exhibit "C" hereto. The [MISD] further specifically agrees that no other information and no negative comments concerning [Bridges] or her performance for the [MISD] will be provided to anyone requesting this information through the Superintendent's Office. Nothing in this Settlement and Release shall, however, preclude or prevent the [MISD] from complying with the provisions of any State or Federal laws involving the disclosure of public information pursuant to any lawful requests made under the said laws. The [MISD] agrees to place [Bridges'] letter of resignation in her official personnel file on top of all other documents and from henceforth, to treat and refer to her separation from [MISD] employment as being caused by such resignation.

On August 11, Deaver participated in a telephone conversation with Jeremy Pafford, a newspaper reporter for the San Angelo Standard-Times. On August 13, the newspaper ran the following article, which was also later posted on the newspaper's website:

A special education teacher who taught for 11 years in the Menard Independent School District has resigned because of findings she used a racial epithet against a student.

Loretta Bridges resigned with one year's pay from Menard ISD Monday night after a compromise was reached between lawyers and the Menard school board, said Superintendent David Deaver.

The Texas Education Agency appointed an independent examiner to go over findings from separate investigations into a January 28 incident in which Bridges was alleged to have made a racial slur to a student, Deaver said.

While there were differences in the findings, Deaver said both investigations did confirm Bridges used a racial epithet.

"It was a racial, very disparaging comment," Deaver said.

Bridges' position has been filled, closing the book on a rather disturbing six months, Deaver said.

"It's one of those situations where we just try now to move on and go about our business," he said.

On August 13, The Menard News and Messenger ran a longer article about the Board of Trustees' meeting and the settlement agreement. Although Deaver was quoted in the article, he made no mention of the alleged racial slur or disparaging remark. Deaver also met with representatives of the League of United Latin American Citizens ("LULAC"), and he told them that he was required "by law" to give Bridges a good recommendation.

Bridges sued MISD for breach of contract, and Deaver (in his individual capacity only) for defamation. Bridges alleged that Deaver's statements to Pafford were slanderous and false. Although Bridges mentioned Deaver's comments to LULAC in the petition's statement of facts, the only statements she alleged to be defamatory were Deaver's comments to the newspapers. Deaver moved for summary judgment on the separate grounds of common-law official immunity and express statutory professional immunity. The trial court denied Deaver's motion for summary judgment on both grounds. Bridges' claims against MISD remain pending before the trial court.

On appeal, Deaver challenges only the court's denial of statutory immunity.

ANALYSIS

Texas Education Code section 22.051 provides immunity for professional employees of school districts, stating that:

(a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee . . . .

(b) This section does not apply to the operation, use, or maintenance of any motor vehicle.

(c) In this section, 'professional employee' includes:

(1) a superintendent, principal, teacher, supervisor, social worker counselor, nurse, and teacher's aide; [and]

. . .

(4) any other person whose employment requires certification and the exercise of discretion.

Tex. Educ. Code Ann. § 22.051 (Vernon 1996).

Thus, Deaver was entitled to summary judgment if he conclusively proved all essential elements of Section 22.051 as a matter of law: (1) that he was a professional employee (which Bridges does not dispute); (2) that his actions were incident to or within the scope of his duties (which Bridges does not dispute); (3) that his duties involved the exercise of judgment or discretion on his part; and (4) that his actions were not within the stated exceptions (which neither party asserts). Bridges contends that Deaver's summary judgment proof is insufficient to establish summary judgment as a matter of law because (1) his conduct was ministerial and not discretionary or, in the alternative, (2) there is a fact issue on whether his conduct was discretionary.

Whether an act is ministerial or discretionary depends upon the ability of the actor to exercise discretion when performing it. In other words, if an edict prescribes the duties to be performed with such precision and certainty so as to leave nothing to the exercise of the actor's judgment, then the act is ministerial. Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996). Ministerial actions require obedience to orders or the performance of a duty to which the actor has no choice. Id. Ministerial acts are not limited to those commanded by statute, but may also be imposed by orders or other duties. City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). However, if the actor is entitled to personally deliberate about the manner or means of performance and invoke his or her own judgment, then the act is discretionary. Downing, 935 S.W.2d at 114. The distinction between the two is often one of degree because any official act that is ministerial still...