Kipp Tex., Inc. v. Doe

• Decision Date: 30 June 2022
• Docket Number: 01-21-00368-CV
• Citation: 649 S.W.3d 850
• Parties: KIPP TEXAS, INC. d/b/a KIPP Texas Public Schools, Appellant v. John & Jane DOE #1 (a/n/f J.P.), Jane Doe #2 (a/n/f A.N.), John & Jane Doe #3 (a/n/f A.G.C.), and Jane Doe #4 (a/n/f E.S.), Appellees
• Court: Texas Court of Appeals

649 S.W.3d 850

KIPP TEXAS, INC. d/b/a KIPP Texas Public Schools, Appellant

v.John & Jane DOE #1 (a/n/f J.P.), Jane Doe #2 (a/n/f A.N.), John & Jane Doe #3 (a/n/f A.G.C.), and Jane Doe #4 (a/n/f E.S.), Appellees

NO. 01-21-00368-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued June 30, 2022

Iain Gordon Simpson, Joshua Verde, Houston, for Appellee.

Paul Andrew Lamp, Houston, Melissa Goins, for Appellant.

Panel consists of Chief Justice Radack and Justices Goodman and Hightower.

Gordon Goodman, Justice

KIPP Texas, Inc., doing business as KIPP Texas Public Schools, filed a plea to the jurisdiction, which the trial court denied. KIPP appeals. We reverse the trial court's denial of KIPP's jurisdictional plea and dismiss the appellees’ lawsuit.

BACKGROUND

The appellees are the parents of several young girls who were sexually abused by a school counselor who has since pleaded guilty to sex crimes. In the suit before us, the parents sued the counselor's employer, KIPP, which runs the open-enrollment charter school at which the counselor worked. The parents allege claims for assault and negligence, asserting that KIPP enabled and turned a blind eye to the abuse.

In its answer to the suit, KIPP asserted immunity from suit and liability. In an affidavit accompanying its answer, KIPP's Deputy Chief of Human Resources represented that KIPP is a nonprofit company authorized by the Texas Education Agency to operate an open-enrollment charter school. Then, in its plea to the jurisdiction, KIPP argued that open-enrollment charter schools have governmental immunity to the same extent as public schools, which would be immune from the appellees’ claims. On this basis, KIPP requested dismissal of the appellees’ suit.

The appellees opposed dismissal on three grounds. First, they argued that the governmental immunity enjoyed by open-enrollment charter schools is limited to situations involving commercial contracts, not instances of sexual abuse. Second, they argued that to the extent governmental immunity extends to sexual abuse, the open-courts provision of the Texas Constitution bars the application of immunity. Third, they argued KIPP had not shown it is an open-enrollment charter school.

The trial court denied KIPP's plea to the jurisdiction without stating a rationale for the denial. KIPP now appeals from the denial of its jurisdictional plea.

GOVERNMENTAL IMMUNITY

Standard of Review

When, as here, the facts material to a jurisdictional inquiry are settled, we review the trial court's ruling on a plea to the jurisdiction de novo. Kubosh v. Harris Cty. , 416 S.W.3d 483, 486 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Applicable Law

Sovereign immunity is a common-law doctrine that bars litigation against the state unless the state consents and waives its immunity. Democratic Sch. Research v. Rock , 608 S.W.3d 290, 306 (Tex. App.—Houston [1st Dist.] 2020, no pet.). Absent waiver, the state's political subdivisions, like public school districts, are also immune from litigation, though the immunity of these subdivisions is referred to as governmental immunity. Id. Governmental immunity has two components: immunity from suit and immunity from liability. Id. The former defeats a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction, while the latter insulates political subdivisions of the state from money judgments even if immunity from suit has been waived. Id. Those who sue a political subdivision of the state must establish that the state consented to suit. Id. Otherwise, governmental immunity from suit deprives the trial court of subject-matter jurisdiction. Id.

Analysis

Sovereign and governmental immunity are doctrines unique to governmental authority. Univ. of the Incarnate Word v. Redus , 602 S.W.3d 398, 404 (Tex. 2020). As the names of these interrelated doctrines indicate, sovereign immunity is an attribute of a sovereign, like Texas, and governmental immunity is an attribute of the sovereign's political subdivisions, like public school districts. Redus , 602 S.W.3d at 404–05 ; Rosenberg Dev. Corp. v. Imperial Performing Arts , 571 S.W.3d 738, 746 (Tex. 2019). Private institutions are not commonly understood to be part of the government.

Univ. of the Incarnate Word v. Redus , 518 S.W.3d 905, 907 (Tex. 2017). So, we must be careful not to extend immunity to every institution that at first blush exhibits the characteristics of government. Lenoir v. U.T. Physicians , 491 S.W.3d 68, 85 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The justifications for sovereign and governmental immunity are preservation of the state's limited resources to ensure it can carry out its essential functions and prevention of judicial interference with the legislature's prerogative to allocate tax dollars. Redus , 602 S.W.3d at 404. These justifications are inapt with respect to private institutions. See id. at 409–11. Moreover, unfairness is part and parcel of sovereign and governmental immunity, in that the application of these doctrines often precludes the redress of undeniable wrongs. Id. at 410–11 ; Hall v. McRaven , 508 S.W.3d 232, 245 (Tex. 2017) (Willett, J., concurring). Thus, we apply these doctrines solely when their application is necessary to vindicate their justifications, which relate exclusively to the exercise of governmental authority. See Hughes v. Tom Green Cty. , 573 S.W.3d 212, 218 (Tex. 2019) (describing sovereign immunity as "a rule of necessity").

However, our Supreme Court has held that open-enrollment charter schools are entitled to governmental immunity. El Paso Educ. Initiative v. Amex Props. , 602 S.W.3d 521, 530 (Tex. 2020). And we must apply the Court's decisions faithfully. See Lubbock Cty. v. Trammel's Lubbock Bail Bonds , 80 S.W.3d 580, 585 (Tex. 2002) (Court of Appeals cannot abrogate or modify Supreme Court's decisions).

El Paso involved a dispute between an open-enrollment charter school and a landlord with whom the school negotiated a lease. 602 S.W.3d at 524–26. When the school repudiated the lease, the landlord brought suit for anticipatory breach of the lease. Id. at 525–26. The school, in turn, filed a plea to the jurisdiction, contending it had governmental immunity to the same extent as public school districts. Id. at 526. The trial court denied the school's jurisdictional plea, and the school appealed. Id. When the issue eventually reached our Supreme Court, it agreed with the school, holding "that open-enrollment charter schools and charter-holders are entitled to governmental immunity" to the same extent as public school districts. Id. at 530.

In holding that open-enrollment charter schools have governmental immunity to the same extent as public school districts, the Court noted that the legislature has chosen to make them part of the public education system, which the state is constitutionally required to provide. Id. at 528 (citing TEX. CONST. art. VII, § 1 and TEX. EDUC. CODE § 12.105 ). These schools are generally open to the public and tuition-free. Id. at 528. Though open-enrollment charter schools are typically operated by private, nonprofit organizations, they are regulated by the state and largely publicly funded. Id. at 528–29 (citing EDUC. § 12.106). For these reasons, the legislature has statutorily provided that open-enrollment charter schools are immune from suit and liability to the same extent as public schools. Id. at 529 (citing EDUC. § 12.1056(a)). And the Court, which is the ultimate arbiter as to when sovereign and governmental immunity apply, agreed that open-enrollment charter schools act as an arm of the government and are entitled to governmental immunity to the same extent that public school districts enjoy the benefit of that doctrine. Id. at 527, 529–30 ; see also Nettles v. GTECH Corp. , 606 S.W.3d 726, 731 (Tex. 2020) (stating that judiciary decides when state and its political subdivisions have immunity and legislature decides when and to what extent to waive immunity).

The Court recognized that "[p]ublic school districts are generally entitled to governmental immunity from liability and suit." El Paso , 602 S.W.3d at 526 ; see also TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B) (including school districts in definition of "governmental unit" in Texas Tort Claims Act, which is where legislature generally sets forth waivers of governmental immunity). With respect to tort claims, the legislature has waived the immunity of public school districts solely in cases in which a plaintiff's injuries arise from the operation or use of a motor-driven vehicle. CIV. PRAC. & REM. §§ 101.021, 101.025, 101.051 ; City of Galveston v. State , 217 S.W.3d 466, 470 n.22 (Tex. 2007). Furthermore, the legislature has not waived governmental immunity with respect to any claim arising out of an intentional tort, like assault or battery. CIV. PRAC. & REM. § 101.057(2).

In this suit, the appellees allege claims for assault and negligence based on the sexual abuse of their children by a school counselor employed by KIPP at an open-enrollment charter school. A public school district would be immune from these claims. See, e.g., Brown v. Houston Indep. Sch. Dist. , 123 S.W.3d 618, 619–23 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (affirming summary judgment for school district based on governmental immunity in suit alleging district was liable for sexual assault committed by district employee); see also Houston Indep. Sch. Dist. v. PERX , No. 14-13-01115-CV, 2014 WL 4262198, at *2–3 (Tex. App.— Houston [14th Dist.] Aug. 28, 2014, no pet.) (mem. op.) (reversing trial court's denial of jurisdictional plea because school district had governmental immunity from suit claiming it should have prevented sexual assault on bus); Locke v. Santa Fe Indep. Sch. Dist. , No. 14-98-00880-CV, 2000 WL 328351, at *1 (Tex. App.— Houston [14th Dist.] Mar. 23, 2000, no pet.) (per curiam) (not designated for publication) (opining that it is well-established...