Williams v. Conroe Independent School Dist.

• Citation: 809 S.W.2d 954
• Decision Date: 30 May 1991
• Docket Number: No. 09-90-117,09-90-117
• Parties: 68 Ed. Law Rep. 189 Marvin WILLIAMS, Appellant, v. CONROE INDEPENDENT SCHOOL DISTRICT, Doris W. Like, and Stan Lilley, Appellees. CV.
• Court: Court of Appeals of Texas

Page 954

809 S.W.2d 954

68 Ed. Law Rep. 189

Marvin WILLIAMS, Appellant, v. CONROE INDEPENDENT SCHOOL DISTRICT, Doris W. Like, and Stan

Lilley, Appellees.

No. 09-90-117 CV.

Court of Appeals of Texas,

Beaumont.

May 30, 1991.

Robert M. Wood, Kingwood, for appellant.

William S. Helfand, Hirsch, Glover, Robinson & Sheiness, Houston, for appellees.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

This is an appeal from the granting of the defendants' motion for summary judgment. Conroe Independent School District ("CISD") employed Marvin Williams as a bus driver. After a white female student accused Williams of soliciting sex from her, CISD suspended Williams with pay for the remainder of the year and did not renew his contract for the following year. Stan Lilley, the assistant coordinator of transportation for CISD, decided not to rehire Williams. Doris W. Like, an assistant superintendent for CISD, officiated at a post-termination hearing held at Williams' request. Lilley was one of the witnesses at that hearing. Williams requested a continuance so his attorney could attend. The hearing was not rescheduled. Williams did not personally appear at the administrative hearing. Williams then sued CISD, Like and Lilley for wrongful termination, defamation, intentional infliction of emotional suffering, intentional racial discrimination and deprivation of civil rights under color of law.

Williams' sole point of error is the trial court erred in granting the motion for summary judgment. The grounds stated in the motion for summary judgment were: (1) Williams' state court claims were barred by affirmative defenses of sovereign immunity, absolute privilege, qualified privilege, and qualified immunity; (2) the individual defendants were government officials performing discretionary functions and thus immune from Williams' federal claims; (3) Williams failed to allege that his rights as protected by 42 U.S.C.A. § 1983 were violated pursuant to any official governmental policy; and (4) there was no fact issue and no evidence supporting Williams' claim of racial discrimination.

Williams initially contends the judgment is based on inadmissible and unverified attachments to the motion for summary judgment. His response to the motion contains objections to an incomplete and unverified transcript of the hearing, to an incomplete and unverified deposition excerpt, to a copy of the original petition with unidentified handwritten notes added thereon, and to a handwritten statement of the student being "hearsay on hearsay." Defects in the form of affidavits or attachments shall not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. TEX.R.CIV.P. 166a(f). Although the objection to the student's statement does not specifically identify what within that statement is "hearsay within hearsay" and is thus not specific enough to reasonably apprise his opponent of the defect, appellant did correctly and specifically identify defects in the hearing transcript and the deposition excerpt. The transcript and excerpt are not certified or attested under oath and are therefore not proper summary judgment evidence.

Although some of the attachments to the motion were not proper summary judgment evidence, we cannot reverse the judgment on that ground. Appellant's brief contains the statement "the district court did not rule on Williams' objections to the tender of inadmissible and unverified attachments to the summary judgment motion." In order to preserve a complaint for appellate review, a party must not only present to the trial court a timely objection stating the specific grounds for the ruling he desired the court to make, he must also obtain a ruling on the objection. TEX.R.APP.P. 52(a). Appellant did not obtain a ruling, nor does an objection to the court's failure to rule appear of record; thus no error was preserved even though appellant complied with Rule 166a.

The question on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of a material fact as to one or more of the essential elements of each of Williams' causes of action. The burden of proof is on the movants and all evidence favorable to the non-movant must be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985).

An independent school district is an agency of the state and, while exercising governmental functions, is not answerable in a suit sounding in tort. Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978). The waiver of governmental liability provided for in the Texas Tort Claims Act is in the case of school districts restricted to causes of action arising from the use of motor vehicles. TEX.CIV.PRAC. & REM.CODE ANN. § 101.051 (Vernon 1986). A professional employee of any school district shall not be personally liable for any act incident to, or within the scope of, his professional duties which involves the exercise of judgment or discretion, except in circumstances involving the discipline of a student where negligence or use of excessive force results in bodily injury to the student. TEX.EDUC CODE ANN. § 21.912 (Vernon 1987). See also TEX.CIV.PRAC. & REM.CODE ANN. § 101.106 (Vernon 1986). Since both the district and the individuals enjoyed immunity, the summary judgment was proper on Williams' state law claims.

Williams' federal claims are not barred by sovereign immunity. A school district may be liable pursuant to 42 U.S.C.A. § 1981 for racial discrimination which occurs pursuant to an official policy or standard operating procedure. Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). A person deprived of his constitutionally protected rights by the acts of school officials taken pursuant to custom or policy may maintain an action against the school district under 42 U.S.C.A. § 1983. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982). This rule would logically extend to a state official sued under § 1983. See Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978).

We first examine the movants' summary judgment evidence to determine if they establish a right to judgment as a matter of law. The motion for summary judgment included affidavits from Like, Lilley, and two other CISD employees. Like's affidavit stated that she held the hearing and questioned the student, Lilley, principal Al York, and assistant principal Pat Huff, and that she thought CISD presented sufficient evidence to justify the suspension with pay and subsequent non-rehiring. Affidavits from Lilley, Huff and...