Fowler v. Szostek

• Decision Date: 03 August 1995
• Docket Number: No. 01-94-01136-CV,01-94-01136-CV
• Citation: 905 S.W.2d 336
• Parties: 103 Ed. Law Rep. 519 Robert D. FOWLER, William C. Martin, and Charles Vick, Appellants, v. Mary Ann SZOSTEK and Lawrence V. Szostek, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 336

905 S.W.2d 336

103 Ed. Law Rep. 519

Robert D. FOWLER, William C. Martin, and Charles Vick, Appellants, v. Mary Ann SZOSTEK and Lawrence V. Szostek, Appellees.

No. 01-94-01136-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 3, 1995.

Kelly Frels, Ronald Scott, Lisa A. Brown, Houston, for appellants.

David T. Lopez, Thomas H. Padgett, Jr., Houston, for appellees.

Before HUTSON-DUNN, O'CONNOR and WILSON, JJ.

OPINION

WILSON, Justice.

This is an interlocutory appeal from the denial of a motion for summary judgment under TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1995). ¹ Robert D. Fowler, William C. Martin, and Charles Vick, the appellants and defendants in the trial court, are current or former junior high school administrators in the Cypress-Fairbanks Independent School District (CFISD). Mary Ann and Lawrence V. Szostek, the appellees and plaintiffs in the trial court, are the mother and step-father of a deceased Cypress-Fairbanks junior high student, Brandi Nelson. Brandi committed suicide at her home after being removed from school for allegedly selling marijuana. The Szosteks filed this wrongful death suit, asserting tort (negligence and bystander) claims and a due process claim under the Texas Constitution. The defendants filed a motion for summary judgment, asserting immunity under TEX.EDUC.CODE ANN. § 21.912(b) (Vernon 1987) and under the official immunity doctrine. The trial court denied the motion. This appeal resulted. ² We reverse and render.

Summary judgment evidence

During the 1992-93 school year, Brandi Nelson was a student at Bleyl Junior High School. Defendants Vick and Fowler are assistant principals at Bleyl. Defendant Martin was the principal of Bleyl at the time. The affidavits of the defendants set forth the following facts. On the afternoon of December 17, 1992, two days before the Christmas vacation break, Fowler questioned an eighth-grade student, Andrew, about an allegation from another student that he possessed drugs. Fowler determined that Andrew was in possession of marijuana. Andrew told Fowler he and his friend Blake purchased the marijuana from Brandi for $25. The boys gave the money to Brandi the day before, and she delivered the marijuana that day. Vick obtained a written statement from Andrew. Both Brandi and Blake were removed from class and separately interviewed.

Martin interviewed Brandi about the allegation that she had sold marijuana. She denied selling marijuana to anyone. Martin searched Brandi's backpack and did not find any drugs. The search was witnessed by Pam Stelzig, a secretary in the main office. Martin asked the school nurse to search Brandi for contraband. The nurse felt along Brandi's clothing and inside her shoes and socks. Again, Ms. Stelzig witnessed the search. The nurse did not find any contraband. Martin told Brandi that he was pleased no drugs had been found, and at the present time, the allegation against her was unsubstantiated.

In the meantime, Vick interviewed Blake, the other boy involved in the drug sale. Blake admitted that he and Andrew bought marijuana from Brandi. Both boys gave written statements to Vick. Fowler, Vick, and Martin agreed the students should be disciplined. Based on the CFISD's code of conduct, they decided the boys should be assigned to the CFISD's alternative education program and should receive substance abuse counseling. They determined that Brandi should be recommended for expulsion for the remainder of the school year for distributing drugs on campus.

On the morning of December 18, 1992, the last day of school before the holiday break, the parents of Andrew, Blake, and Brandi were asked to come to school. The boys, in the presence of their parents, separately confessed to buying the drugs and identified Brandi from a school picture. The boys received an "emergency removal," that is, they were sent home from school for the remainder of the day. An emergency removal is implemented to prevent distraction and disruption and to promote student safety.

Fowler also met with Mrs. Szostek and Brandi that morning. Fowler told Brandi and Mrs. Szostek that the administration believed that Brandi had sold marijuana to two students on campus, and he read the two boys statements to them. Fowler told Mrs. Szostek that the recommendation to expel Brandi was not a final decision and that she was entitled to a hearing before a discipline review committee, which would look at the evidence and make a decision. He explained that the committee's decision could be appealed to the school board.

At Mrs. Szostek's request and in her presence, Fowler telephoned Mr. Szostek and explained the hearing and appellate process to him. Fowler told him to schedule a hearing with Charles Goodson, the associate superintendent for administration in the school district. Fowler told Mrs. Szostek that she could meet with Martin, the principal, that morning and that his secretary was preparing the emergency removal paperwork. Mrs. Szostek and Brandi left school without talking to Martin or waiting for the paperwork. Fowler noted that during this meeting, Brandi was "teary-eyed" but made no comments. Fowler was the only defendant to speak to the plaintiffs on December 18, 1992. In their affidavits, the three defendants testified that the decision to investigate the drug sale allegations and to impose discipline involved discretion and judgment and that they were acting in good faith at all times.

In his affidavit, Charles Goodson testified that expulsion is any removal from school for more than six days. When a school recommends expulsion, his office schedules the hearing and selects a discipline review committee. The committee is composed of administrators from other campuses in the district. On the morning of December 18, 1992, he received a telephone call from Mr. Szostek regarding the accusation that his step-daughter, Brandi, sold drugs at school. Goodson explained the hearing process to him, and they agreed to hold the expulsion hearing on January 5, 1993. After the conversation, Goodson and his secretary prepared the expulsion hearing notice letter, a copy of which is attached to his affidavit. The letter was sent to the Szosteks that day by express mail for a Saturday delivery.

The school board policies, attached to the motion for summary judgment, mirror the language in section 21.3011(b) of the Education Code regarding expulsion. A student may be removed from class and expelled if the student sells marijuana on school property. TEX.EDUC.CODE ANN. § 21.3011(b) (Vernon Supp.1995). The board policies provide for the expulsion process. Specifically, a student shall be expelled by written order setting the term of the expulsion. Before expulsion, the board or its designee, i.e., the discipline review committee, shall provide the student a hearing at which the student is afforded due process. The due process afforded includes prior notice of the charges and proposed sanctions; the right to a full and fair hearing before the board or its designee; the right to an adult representative or legal counsel; the opportunity to testify and present evidence and witnesses; and the opportunity to examine the evidence presented by the school administration and question its witnesses. The notice shall be in writing and shall advise of the nature of the evidence and the names of any witnesses. The student shall be notified of the hearing date. Any decision by the board's designee to expel a student may be appealed to the board. The authority to expel a student for a single serious offense, such as the selling of marijuana, is delegated from the board to the deputy superintendent and the discipline review committee.

The CFISD Code of Conduct, a copy of which is attached to the motion for summary judgment, also provides that a student selling or distributing marijuana shall be expelled for the balance of the school year unless the offense occurs during the final six-weeks, in which case, the student may remain expelled through the following semester. The code sets forth the same procedure for notice and hearing as the board policies. The code also provides that before an expulsion can be made, the hearing must be held within seven school days of the date of the offense leading to expulsion unless an extension is mutually agreed on by the district's representative and the student's parent or guardian.

In response to the summary judgment, the Szosteks filed affidavits. Mrs. Szostek testified that on December 17, 1992, Brandi told her that she had been accused by school officials of selling drugs. She was searched and then released. Brandi was upset but denied any involvement. Brandi told her mother that the school officials told her they were satisfied that the accusation was not true. At 7:30 a.m., December 18, 1992, Fowler telephoned Mrs. Szostek to come to school to discuss Brandi. Fowler met with her and told her that Brandi was expelled for dealing drugs. She begged Fowler to wait until after the holidays to give them the chance to discuss things further. She also told him the decision would devastate Brandi.

Mrs. Szostek testified that Brandi joined Fowler and her during their meeting. Fowler told Brandi she was expelled for dealing drugs. He stated that two students had given sworn statements in which they identified Brandi as the person who sold them drugs. Mrs. Szostek testified that Fowler refused to let her see the statements and to give her the students' full names. He did not read the statements to her. Mrs. Szostek refused to sign a release form acknowledging that Brandi was being removed on an emergency basis from the school and expelled.

In his affidavit, Mr. Szostek testified that he received a call at work from his wife on December 18, 1992. She told him that Brandi had been expelled from school for the rest of the year because, according to school officials, she had sold marijuana to two students at school....