Russell v. Edgewood Independent School Dist., 14497

• Decision Date: 27 July 1966
• Docket Number: No. 14497,14497
• Citation: 406 S.W.2d 249
• Parties: Hattie RUSSELL, Appellant, v. EDGEWOOD INDEPENDENT SCHOOL DISTRICT and Bennie F. Steinhauser, Appellees. . San Antonio
• Court: Texas Court of Appeals

Page 249

406 S.W.2d 249

Hattie RUSSELL, Appellant, v. EDGEWOOD INDEPENDENT SCHOOL DISTRICT and Bennie F.

Steinhauser, Appellees.

No. 14497.

Court of Civil Appeals of Texas.

San Antonio.

July 27, 1966.

Rehearing Denied Sept. 21, 1966.

Sam Houston Clinton, Jr., Austin, for appellant.

Dobbing & Howard, Roy R. Barrera, San Antonio, for appellees.

MURRAY, Chief Justice.

This suit was instituted by Miss Hattie Russell, a school teacher, against Edgewood Independent School District and its superintendent, Bennie F. Steinhauser, alleging that they had discharged her as a teacher in said School District because she was a member and officer of the Edgewood Federation of Teachers Local 1357. Suit was not filed until Feb. 3, 1961, and Miss Russell did not seek reinstatement, but sought actual damages, exemplary damages, and damages for mental anguish and humiliation.

The trial was to a jury and, based upon the jury's answers to the special issues submitted, judgment was rendered that Hattie Russell take nothing and pay all costs of court, from which judgment she has prosecuted this appeal.

We are met on the threshold of this case with the question whether this tort action may be maintained for damages against an Independent School District, which is a branch of the State government and has for its purpose only the education of children, and therefore has Governmental immunity from tort actions.

It was be borne in mind that this is not a suit for reinstatement of a teacher who has been discharged, or for back pay for the time during which she was discharged, but is an action sounding in tort, for actual and exemplary damages, based upon the provisions of Art. 5154c and Art 5207a, Vernon's Ann.Civ.St., known as the 'right to work laws.'

It has definitely been held that an independent school district is an agency of the State and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. Treadaway v. Whitney Ind. School Dist., Tex.Civ.App., 205 S.W.2d 97; Campbell v. Hillsboro Ind. School Dist., Tex.Civ.App., 203 S.W.2d 663; Braun v. Trustees of Victoria Ind. School Dist., 114 S.W.2d 947 . Here we have a damage suit sounding in tort for wrongful discharge of a teacher and not one for reemployment. The hiring and discharging of school teachers are duties of the school trustees, and in performing these duties they are performing a governmental educational function and are not answerable in a cause of action sounding in tort for the damages they may have caused by such wronful discharge or for failure to reemploy a teacher.

It is the duty of a school superintendent, when directed by the Board of School Trustees, to recommend the employing and discharging of teachers, and he is not answerable in a cause sounding in tort for his actions while discharging this governmental educational function.

There is nothing in Articles 5154c and 5207a, supra, which changes the rule of governmental immunity extended to school districts, their trustees and superintendents.

Art. 5154c, § 4, reads as follows:

'It is declared to be the public policy of the State of Texas that no person shall be denied public employment by reason of membership or nonmembership in a labor organization.'

Art. 5207a, § 2, reads as follows:

'No person shall be denied employment on account of membership or nonmenbership in a labor union.'

It is quite possible that Art. 5207a was not intended to apply to governmental bodies such as independent school districts, and that only the provisions of Art. 5154c were intended to apply to school districts, but be that as it may, neither or these articles provides any penalties or remedial procedures, and can therefore only be enforced by injunction or mandamus. There is nothing in either Article that would indicate that the intention of the Legislature was to destroy the governmental immunity of independent school districts and allow them to be sued for damages in tort actions, which could not theretofore be done. We know of no case holding that an independent school district can be sued for damages in tort under either of these articles. In Local Union No. 324, etc. v. Upshur-Rural Elec. Coop. Corp., Tex.Civ.App., 261 S.W.2d 484, the Court said:

'Since neither penalties nor remedial procedure is provided in the Act, the injunctive power of the courts may protect against invasion of such rights as are granted thereby. Brotherhood of Ry. and S. S. Clerks, etc., v. Texas & N.O.R. Co., D.C., 24 F.2d 426; Id., 5 Cir, 25 F.2d 873, 876, affirmed sub nom. Texas & N.O.R. Co. v. Brotherhood of Ry. and S.S. Clerks, 5 Cir., 33 F.2d 13; 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The right, of course, is abstract, and the applicant must show himself entitled to equitable relief by bringing himself within the statutory requirements, art. 4642 et seq., R.S. of Texas, as they have been construed by the courts.'

This suit sounding in tort cannot be maintained against Edgewood Independent School Distirct because of the governmental immunity existing in this State in favor of independent school districts. Treadaway v. Whitney Ind. School Dist., supra; Campbell v. Hillsboro Ind. School Dist., supra; Braun v. Trustees of Hillsboro Ind. School Dist., supra.

This brings us to a consideration of whether appellant can maintain this suit against Bennie F. Steinhauser as the school's superintendent. We must answer this question in the negative. Trustees and agents of a school district, while acting in such official capacity, enjoy the same governmental immunity as does the school district. Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (1954); De Levay v. Richmond County School Board, 4 Cir., 284 F.2d 340.

Appellant's contention here is that whatever Steinhauser did in connection with the hiring or discharging of Miss Russell, he did as agent for Edgewood Ind. School Dist., and that the school district was responsible for his acts. There is no contention that he had abandoned his duties as superintendent and had become an individual and a mere intermeddler. As long as Steinhauser was acting within the scope of his employment as a school superintendent he cannot be held personally liable in a tort action, except in such cases which involve individual and separate torts, such as assault, trespass, fraud or conversion. Greyhound Corp. v. Commercial Cas. Ins. Co.,...