Clarence Whitesell v. Nellie Newsome, as Next Friend of Jane Doe, a Minor Child

Affirmed and Opinion filed March 2, 2004

Affirmed

and Opinion filed March 2, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00834-CV

____________

CLARENCE WHITESELL , Appellant

V.

NELLIE NEWSOME, AS

NEXT FRIEND OF JANE DOE, A MINOR CHILD , Appellee

On Appeal from the 335th

District

Washington County , Texas

Trial Court Cause No. 32617

O P I N I O N

Appellant Clarence Whitesell appeals from

an interlocutory order denying his motion for summary judgment based on

official immunity. Appellee Nellie

Newsome filed this lawsuit against Whitesell, asserting claims of negligence

and negligence per se, arising out of an incident of sexual misconduct by a bus

driver, Todd Johnson, with Jane Doe, a minor child. Johnson had been employed by Brenham

Independent School District ( A BISD @ ), where he was

supervised by Whitesell. Whitesell

presents the following three issues for our review in this accelerated

appeal: (1) whether the judgment of a

federal district court granting BISD = s motion for

summary judgment on a 42 U.S.C. ' 1983 claim bars

the state law claims against Whitesell, pursuant to section 101.106 of the

Texas Tort Claims Act; (2) whether summary judgment should have been granted in

favor of Whitesell because BISD would have been immune from suit and, as an

employee and agent of BISD, he has official immunity; and (3) whether summary

judgment should have been granted in favor of Whitesell because he has immunity

as a professional employee of a school district, pursuant to section 22.051 of

the Texas Education Code. We affirm.

I. Procedural and Factual Background

In May 1998, Newsome filed a lawsuit in

the United States District Court for the Southern District of Texas against

BISD, Durham Transportation, Inc. ( A Durham @ ), Todd Johnson,

and other individuals. Whitesell was not

a party to the federal lawsuit. [1] Newsome alleged causes of action pursuant to

42 U.S.C. ' 1983 and state law claims of battery and

negligence. She alleged that Johnson, a

school bus driver employed by Durham, a private company, touched Doe, a minor

student at BISD, on her thigh and wrote an obscene message on her hand. Johnson was initially employed by BISD as a

school bus driver in the fall of 1991.

Whitesell, Johnson = s supervisor while he was employed by

BISD, ran a background check on Johnson in 1991, which showed that Johnson had

no prior criminal history. In 1994,

however, Whitesell became aware of Johnson = s felony

conviction involving a burglary of an automobile. BISD outsourced the busing of its students to

Durham, and despite knowing of Johnson = s felony

conviction, Whitesell recommended Johnson to Durham as an approved bus

driver. Based on Whitesell = s recommendation,

Durham employed Johnson as a bus driver.

In her federal court action, Newsome

alleged that a constitutional violation occurred as a result of the school

district = s violation of

section 22.084(b) of the Texas Education Code.

That provision states, in pertinent part, as follows:

If the district,

school, service center, or shared services arrangement obtains information that

a [bus driver or prospective bus driver] has been convicted of a felony or a

misdemeanor involving moral turpitude, the district, school, service center, or

shared services arrangement shall inform the chief personnel officer of the

person with whom the district, school, service center, or shared services

arrangement has contracted, and the person may not employ that person to drive

a bus on which students are transported without the permission of the board of

trustees of the district or service center, the governing body of the

open-enrollment charter school, or the chief executive officer of the private

school or shared services arrangement.

Tex. Educ. Code Ann. ' 22.084(b) (Vernon

Supp. 2004). The federal district court

granted summary judgment on Newsome = s 42 U.S.C. ' 1983 claim in

favor of BISD and Durham on the basis that Whitesell, who made the decision to

approve Johnson, did so based on Johnson = s work

history. The court found that decision

was not within Whitesell = s authority and that he acted outside the

scope of his employment because his decision violated the requirements of

section 22.084(b) of the Education Code.

The court further concluded BISD was not liable for the alleged injury

caused by Whitesell = s unauthorized decision. After dismissing Newsome = s ' 1983 claim, the

court declined to exercise supplemental jurisdiction over the remaining state

law claims and dismissed them for lack of subject-matter jurisdiction. See 28 U.S.C. 1367(c)(3).

Newsome subsequently filed her state court

action and alleged claims of negligence and negligence per se against

Whitesell, Durham, and Johnson, but not BISD.

In Whitesell = s affidavit filed in the federal lawsuit,

submitted as summary judgment evidence in this lawsuit, he said that he did

learn that Johnson had been charged with burglary of an automobile. He testified that he was satisfied Johnson

had not A personally been

involved in any violence against another person, it did not involve drugs, and

it did not involve sexual misconduct. @ Whitesell said, A I, therefore, saw

no reason to terminate his employment with [BISD] in light of his otherwise

very good job performance. @ Whitesell further testified that he provided

Durham with a list of employees who were qualified to drive buses for BISD,

including the fact that they had the requisite criminal record check, and

Johnson was on that list. Whitesell

filed two motions for summary judgment, both of which were denied by the trial

court. This accelerated appeal from the

denial of summary judgment based on immunity followed. See Tex.

Civ. Prac. & Rem. Code Ann. ' 51.014(a)(5)

(Vernon Supp. 1999).

II. Analysis

Whitesell filed a traditional motion for

summary judgment, and therefore had the burden to show that no genuine issue of

material fact exists and that he is entitled to judgment as a matter of

law. Tex.

R. App. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546,

548 (Tex. 1985). As a defendant, he must

conclusively negate at least one essential element of each of Newsome = s causes of action

or conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez ,

941 S.W.2d 910, 911 (Tex. 1997). His

motion rested on the affirmative defense of immunity. In deciding whether a disputed material fact

issue exists precluding summary judgment on Whitesell = s affirmative

defense, we resolve every reasonable inference in favor of Newsome and take all

evidence favorable to her as true. See

Science Spectrum , 941 S.W.2d at 911 .

A. Official

Immunity

In Whitesell = s first and second

issues, he argues that the federal court = s judgment in

favor of BISD dictates that he is immune from Newsome = s lawsuit pursuant

to section 101.106 of the Civil Practice and Remedies Code. Whitesell = s argument fails

because the basis for the federal court = s order was that

BISD was not liable under section 42 U.S.C. ' 1983; the court

did not rule that BISD was not liable pursuant to the Texas Tort Claims

Act. Section 101.106 of the Civil

Practice and Remedies Code provides as follows:

A A judgment in an

action or a settlement of a claim under this chapter bars any action

involving the same subject matter by the claimant against the employee of the

governmental unit whose act or omission gave rise to the claim. @ Tex.

Civ. Prac. & Rem. Code Ann. ' 101.106 (Vernon

1997); see also, e.g. , Bell v. Love , 923 S.W.2d 229, 231 (Tex.

App. C Houston [14th

Dist.] 1996, no writ) (stating that petitions = use of phrase A were put on notice

of this claim pursuant to the Texas Tort Claims Act @ was evidence that

plaintiffs brought suit under the Act); Zaragoza v. City of Grand Prairie ,

998 S.W.2d 395, 398 (Tex. App. C Texarkana 1999, no

pet.) ( A The express

language of Section 101.106 bars any action against a government employee where

there is a Tort Claims Act judgment or settlement concerning the same subject

matter. @ ). Accordingly, we overrule Whitesell = s first issue. [2] For the same reasons C namely, the

necessity of a final judgment in favor of a governmental entity under the Tort

Claims Act C we also overrule his second issue, which

essentially asks us to conclude that he is immune from suit under section

101.106 of the Civil Practice and Remedies Code because the school district would

have been immune from suit under the Texas Tort Claims Act.

B. Immunity

as Professional Employee of School District

We, thus, turn to Whitesell = s third issue, in

which he argues that he is entitled to immunity as a professional employee of

the school district under section 22.051 of the Texas Education Code. Section 22.0511(a) provides, in relevant

part, as follows:

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, except in circumstances in which a professional employee uses

excessive force in the discipline of students or negligence resulting in bodily

injury to students.

Tex. Educ. Code Ann. ' 22.0511(a)

(Vernon Supp. 2004).

The record reflects that Whitesell

recommended Johnson to Durham, despite knowing of Johnson = s felony

conviction, and this action violated section 22.084(b) of the Education

Code. Whitesell does not dispute that

his conduct violated section 22.084(b).

Thus, the pertinent question is whether, despite Whitesell = s violation of the

Education Code, he is immune from liability as a professional employee of a

school district.

Although we cannot find any case

addressing the question of whether a professional employee of a school district

is immune when he has violated section 22.084(b), decisions from our sister

courts support the conclusion that where a school district professional

employee violates a mandatory rule, such as section 22.084(b), he is not immune

under section 22.0511(a). For example,

in Myers v. Doe , 52 S.W.3d 391 , 395 B 96 (Tex. App. C Fort Worth 2001,

pet. denied), the court of appeals concluded that the school = s implementation

of policies and procedures to address a specific instance of sexual abuse

defined the A duties with such precision as to leave

nothing to the exercise of Appellants = judgment or

discretion. @ Id.

at 396 (citing Downing v. Brown , 935 S.W.2d 112, 114 (Tex. 1996)); cf.

Kobza v. Kutac , 109 S.W.3d 89 , 94 B 95 (Tex. App. C Austin 2003, pet.

denied) (stating that teacher = s creation of A gag @ newspaper article

regarding student, although a violation of the code of ethics, was exercise of

poor judgment; there was no prescription of what a teacher must do to establish

rapport with students and ethics policies did not contain any language specific

to the act about which the student complained).

The same reasoning applies in this case.

Section 22.084(a) of the Education Code prescribes that a school A shall inform @ the chief

personnel officer of the person with whom the school has contracted that a bus

driver has been convicted of a felony.

Furthermore, that person A may not @ employ that bus

driver A without the

permission of the board of trustees of the district or service center. @ See Tex.

Educ. Code Ann. ' 22.084(b) (Vernon 1996). In short, section 22.084(a) A prescribes and

defines the duties to be performed with such precision and certainty as to

leave nothing to the exercise of discretion or judgment @ with respect to

the hiring or recommendation of a bus driver who has been convicted of a

felony. See Downing , 935 S.W.2d

at 114 (quoting City of Lancaster v. Chambers , 883 S.W.2d 650, 654 (Tex.

1994)). We conclude that, because the

act complained of by Newsome did not fall into a category of acts permitting

the exercise of Whitesell = s discretion, a fact question is raised,

and summary judgment therefore was properly denied on the basis of Whitesell = s defense of immunity

under section 22.0511(a) of the Education Code. [3]

Having

overruled all issues presented by Whitesell, we affirm the trial court = s denial of summary judgment.

/s/ Leslie Brock Yates

Justice

Judgment

rendered and Opinion filed March 2, 2004.

Panel

consists of Justices Yates, Anderson, and Hudson.

[1] Newsome states

in her brief that Whitesell was a party to the federal court action, but the

record before us does not support that statement. The federal district court = s order granting summary judgment in favor of BISD

does not reflect that Whitesell was a party to that action.

[2] Furthermore,

we reject Whitesell = s argument that the federal court = s dismissal of the state-law claims for lack of

subject-matter jurisdiction C acknowledging that the state-law claims could be

pursued in state court C was equivalent to a final judgment on the merits. See Home Builders Ass = n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1013 (5th Cir. 1998) (stating that a

dismissal for lack of subject-matter jurisdiction is not a ruling on the merits

and therefore cannot have res judicata effect and bar plaintiffs from pursuing

claims in state court).

[3] Our conclusion

in this case does not contradict our earlier decision in Pierson v. Houston

Indep. Sch. Dist. , 698 S.W.2d 377 (Tex. App. C Houston

[14th Dist.] 1985, writ ref = d n.r.e.). In Pierson ,

students complained that the school principal and a teacher planned, approved,

and arranged the use of a smoke device on a homecoming parade float in violation

of city and state laws regulating the transportation of explosives. Id. at 379 . We rejected the students = argument that this alleged violation meant that the

principal and teacher were not immune as professional employees of a school

district. Id . at 380. The students cited no authority that the

approval of the smoke device violated city or state laws or that the approval,

even if it was illegal, removed the cloak of immunity. Id . at 381. One student judicially admitted that the two

defendants were acting within the scope of their duties. Id .

In addition, the defendants =

uncontroverted affidavits established that they were acting within the scope of

their duties in approving and supervising the school-sponsored floats. Id .

In this case, Whitesell does not controvert that he violated section

22.084(b) of the Education Code, a provision which clearly delineates the

duties of a professional employee of a school with respect to obtaining

approval for the recommendation of a bus driver that the employee learns is a

convicted felon. The facts of this case

more closely resemble Myers than Pierson .