Michael McIntyre and Laura McIntyre, Individually and on Behalf of Their Children, K.M., L.M., C.M., M.M., and L.M. v. El Paso Independent School District, Dr. Lorenzo Garcia, and Mark Mendoza

IN THE SUPREME COURT OF TEXAS

444444444444

NO . 14-0732

444444444444

MICHAEL MCINTYRE AND LAURA MCINTYRE, INDIVIDUALLY AND ON BEHALF OF

THEIR CHILDREN, K.M., L.M., C.M., M.M., AND L.M., PETITIONERS,

v.

EL PASO INDEPENDENT SCHOOL DISTRICT, DR. LORENZO GARCIA, AND MARK

MENDOZA, RESPONDENTS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

Argued November 2, 2015

JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT , JUSTICE

WILLETT , JUSTICE GUZMAN , JUSTICE LEHRMANN , and JUSTICE BOYD joined.

JUSTICE GREEN filed a dissenting opinion, in which JUSTICE JOHNSON and JUSTICE BROWN

joined.

The Texas Education Code permits appeals to the Texas Commissioner of Education by

persons “aggrieved by” either “the school laws of this state” or “actions or decisions of any school

district board of trustees that violate [] the school laws of this state.” TEX . EDUC. CODE § 7.057(a).

It does not permit, much less require, administrative appeals when a person is allegedly aggrieved

by violations of laws other than the state’s school laws, such as our state and federal constitutions.

Yet the court of appeals expected the petitioners “to exhaust their administrative remedies” for their

state constitutional claims. See 457 S.W.3d 475, 487–90 (Tex. App.—El Paso 2014). The trouble

is they have none. Whether their constitutional rights were violated remains to be decided, but it is

a question the courts—not the Commissioner—must decide. We accordingly reverse the court of

appeals’ judgment insofar as it dismissed the petitioners’ claims for failure to exhaust administrative

remedies. However, we affirm the court of appeals’ judgment dismissing certain claims based on

qualified immunity.

I

In 2007, Michael and Laura McIntyre, along with three of their children, were criminally

charged with contributing to truancy and failure to attend school, respectively.1 The McIntyres

claimed the children were exempt from Texas’ compulsory attendance laws because they were

homeschooled. See TEX . EDUC. CODE § 25.086(a)(1) (exempting children who attend private

schools from compulsory school attendance); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 443–44

(Tex. 1994) (holding that bona-fide homeschools are “private schools” within the meaning of the

exemption). The McIntyres had refused to sign a homeschool verification form provided by El Paso

Independent School District. According to the McIntyres, the form committed them to using

curriculum approved by the Texas Education Agency. The District disputes the McIntyres’

interpretation.

1

The statute criminalizing the failure to attend school has since been repealed. See Act of May 27, 1995, 74th

Leg., R.S., ch. 260, § 1, sec. 25.094, 1995 Tex. Gen. Laws 2207, 2294 (amended 1997, 2001, 2003, 2005, 2011),

repealed by Act of May 30, 2015, 84th Leg., R.S., ch. 935, § 41(2), 2015 Tex. Gen. Laws 3224, 3255. The statute

criminalizing contributing to truancy has been amended but remains in effect. See Act of May 27, 1995, 74th Leg., R.S.,

ch. 260, § 1, sec. 25.093, 1995 Tex. Gen. Laws 2207, 2293 (amended 1997, 1999, 2001, 2003, 2011, 2015) (current

version at T EX . E D U C . C OD E § 25.093).

2

The McIntyres assert that after the District’s attendance officer filed criminal charges against

them, he admitted in a phone call that they were “not breaking a law at this time.” This admission,

they contend, is corroborated by the criminal complaints the officer filed against them. In the space

reserved for the officer to list the days of school that children have missed, the complaint instead

alleged the McIntyres had “not met [the] homeschool verification requirements.” The McIntyres

thus assert the charges resulted from a “failure to provide documentation,” not criminal conduct.

The District, however, insists additional information substantiated concerns that the McIntyre

children were not being educated.

The McIntyres sued the District and its attendance officer (among others), alleging they

violated the McIntyres’ constitutional rights by prosecuting the McIntyres for a crime they knew the

McIntyres did not commit, and by using the charges to force the McIntyres to cooperate with their

demands. The McIntyres alleged that their rights to due process, equal protection, and free exercise

of religion under both the Texas Constitution and United States Constitution were infringed, along

with their right to privacy under the Texas Constitution. The McIntyres sought various forms of

relief, including declaratory and injunctive relief, as well as damages under section 1983 of Title 42

of the United States Code.

The District and its attendance officer filed pleas to the jurisdiction, special exceptions, and

motions to dismiss, and the attendance officer moved for summary judgment. Among other things,

the District argued the McIntyres failed to exhaust administrative remedies, and the attendance

officer invoked qualified immunity. The trial court denied these pleas, exceptions, and motions, and

the District and its attendance officer filed an interlocutory appeal. See TEX . CIV . PRAC. & REM .

3

CODE § 51.014(a)(5), (8) (authorizing certain interlocutory appeals). In the court of appeals, the

District urged the McIntyres must exhaust administrative remedies as for their state-law claims only.

The court of appeals agreed, dismissing the McIntyre’s state-law claims against the District.

457 S.W.3d at 490. It also dismissed the state-law claims against the District’s attendance officer

based on the election-of-remedies provision in section 101.106 of the Texas Civil Practice and

Remedies Code, and dismissed the federal-law claims against the attendance officer based on

qualified immunity. Id. at 492, 499. The McIntyres petitioned for review from this Court,

challenging the court of appeals’ judgment on qualified immunity and exhaustion of remedies.

II

This is an interlocutory appeal with special jurisdictional considerations. The court of

appeals’ decision in an interlocutory appeal is generally final. TEX . GOV ’T CODE § 22.225(b)(3).

There are exceptions, however, such as when “one of the courts of appeals holds differently from

a prior decision of another court of appeals or of the supreme court.” Id. § 22.225(c); see id.

§ 22.001(a)(2). Courts hold differently from each other “when there is inconsistency in their

respective decisions that should be clarified to remove unnecessary uncertainty in the law and

unfairness to litigants.” Id. § 22.225(e).

This is such a case. The court of appeals held the Texas Education Code required the

McIntyres to appeal their state-law claims to the Commissioner of Education merely because they

“involve” the school laws of Texas. See 457 S.W.3d at 486. Other courts of appeals have held that

the Education Code’s appeal provision is more limited, recognizing that the statute “has no general

appeal clause for persons aggrieved by school board actions.” Jones v. Clarksville Indep. Sch. Dist.,

4

46 S.W.3d 467, 474 (Tex. App.—Texarkana 2001, no pet.); see also Austin Indep. Sch. Dist. v.

Lowery, 212 S.W.3d 827, 832 (Tex. App.—Austin 2006, pet. denied) (describing statutory changes

limiting the Commissioner’s jurisdiction). The Commissioner’s authority over school disputes

should be clarified, and we have jurisdiction.

III

The Legislature has granted the Texas Commissioner of Education exclusive authority to

resolve certain disputes. TEX . EDUC. CODE § 7.057(a); see Clint Indep. Sch. Dist. v. Marquez, __

S.W.3d __, __ (Tex. 2016). Where the Legislature grants the Commissioner authority to resolve a

dispute, parties to such disputes must seek relief from the Commissioner through an administrative

appeal before resorting to the courts. See Clint Indep. Sch. Dist., __ S.W.3d at __. Because

exhaustion is only required for “complaints that the Legislature has authorized the Commissioner

to resolve,” we turn first to the text of the statute. See id. (citing Warren v. Sanger Indep. Sch. Dist.,

288 S.W. 159, 160 (Tex. 1926)).

A

The exhaustion statute is not all-encompassing. With a few narrow exceptions not applicable

here,

a person may appeal in writing to the commissioner if the person is aggrieved by:

(1) the school laws of this state; or

(2) actions or decisions of any school district board of trustees that

violate:

(A) the school laws of this state; or

(B) a provision of a written employment contract between the

school district and a school district employee, if a violation

causes or would cause monetary harm to the employee.

5

TEX . EDUC. CODE § 7.057(a); see id. § 7.057(e) (listing statutory exceptions).2 The “school laws of

this state” consist of Titles 1 and 2 of the Education Code and the administrative rules adopted under

them. Id. § 7.057(f)(2). In short, aside from employment-contract disputes, the Education Code

limits administrative appeals to cases where a person is aggrieved by Titles 1 or 2 of the Education

Code or a school board’s violation of them.

At times, disputes arising under other laws depend on violations of the school laws. In these

disputes, the Commissioner, not a court, is required to make the initial determination that a school

board violated the school laws. Such was the case in Clint Independent School District v. Marquez,

where parents argued a school district “defie[d] the Constitution’s mandates by violating the

requirements of the Education Code.” __ S.W.3d at __. The Court agreed the constitutional

provisions were not “school laws of the state,” but still required exhaustion because the

constitutional claims were “ancillary to and supportive of a complaint about the board’s . . .

application of school law.” Id. at __, __ (quoting Jones, 46 S.W.3d at 474).

In other words, when claims are predicated on a matter within the Commissioner’s exclusive

jurisdiction, exhaustion is required. But if claims do not challenge the school laws themselves,3 and

2

In 2009, the Legislature amended the statute to add that “[a] person is not required to appeal to the

commissioner before pursuing a remedy under a law outside of Title 1 or [Title 2 of the Education Code] to which Title

1 or [Title 2] makes reference or with which Title 1 or [Title 2] requires compliance.” Act of May 23, 2009, 81st Leg.,

R.S., ch. 1111, § 1, 2009 Tex. Gen. Laws 3054 (codified at T EX . E D U C . C O D E § 7.057(a-1)). The parties do not address

this provision.

3

W e do not suggest, as the dissent contends we do, post at __ (Green, J., dissenting), that a person is only

aggrieved by the school laws when she raises a constitutional challenge. The school laws include both statutes and

administrative regulations, T EX . E D U C . C O D E § 7.057(f)(2), and parties may be aggrieved when other statutory provisions

are violated by the school laws. For example, if a person challenges an administrative regulation, such a challenge would

normally be subject to administrative appeal.

6

neither assert nor depend on violations of the school laws or an employment contract, then

exhaustion is not required.

That the Legislature fully intended these limits to administrative appeals is confirmed by the

history of the exhaustion statute. When the Legislature created the office of state superintendent of

public instruction in 1884, it broadly charged the superintendent with “hear[ing] and determin[ing]

all appeals from the rulings and decisions of subordinate school officers.”4 This led the Court to

hold in 1926 that “resort to the school authorities must first be made before the courts will be

authorized to hear any complaint as to a matter properly belonging to the administration of the school

laws.” Warren, 288 S.W. at 160; see Nance v. Johnson, 19 S.W. 559, 559 (Tex. 1892).

When the Legislature replaced the state superintendent of public instruction with the

Commissioner of Education in 1949, it again created a broad administrative appeal process:

Parties having any matter of dispute among them arising under provisions of the

school laws of Texas, or any person or parties aggrieved by the actions or decisions

of any Board of Trustees or Board of Education, may appeal in writing to the

Commissioner of Education . . . .5

The Legislature similarly vested the Commissioner with extensive authority over school disputes

under the Education Code, which it adopted in 1969:

4

Act of Feb. 4, 1884, 18th Leg., 1st C.S., ch. 25, § 8, sec. 12–13, 1884 Tex. Gen. Laws 38, 41, reprinted in

9 H.P.N. Gammel, The Laws of Texas 1822–1897, at 570, 573 (Austin, Gammel Book Co. 1898) (emphasis added). The

Legislature re-enacted this provision as part of its 1893 and 1905 statutory reforms to the public school system. Act of

1905, 29th Leg., R.S., ch. 124, § 25, 1905 Tex. Gen. Laws 263, 271; Act approved M ay 20, 1893, 23rd Leg., R.S., ch.

122, § 21, 1893 Tex. Gen. Laws 182, 187, reprinted in 10 H.P.N. Gammel, The Laws of Texas 1822–1897, at 612, 617

(Austin, Gammel Book Co. 1898).

5

Act of May 3, 1949, 51st Leg., R.S., ch. 299, art. V, sec. 1, art. VII, sec. 1, 1949 Tex. Gen. Laws 537, 543,

545, repealed by Act of May 31, 1969, 61st Leg., R.S., ch. 889, § 2, 1969 Tex. Gen. Laws 2735, 3024.

7

Persons having any matter of dispute among them arising under the school laws of

Texas or any person aggrieved by the school laws of Texas or by actions or decisions

of any board of trustees or board of education may appeal in writing to the

commissioner of education . . . .6

That changed in 1995, when the Legislature reduced the Commissioner’s authority to hear

disputes.7 As one court of appeals explained, before “1995, the commissioner had jurisdiction over

appeals not only of persons aggrieved by ‘the school laws of Texas,’ or trustee actions, but ‘any

matter of dispute . . . arising under the school laws of Texas.’” Lowery, 212 S.W.3d at 832. But

since 1995, the statute no longer has a “general appeal clause for persons aggrieved by school board

actions.” Jones, 46 S.W.3d at 474.

No longer is there a “direct administrative remedy for claims that a school board took action

that violated the constitutional rights (either state or federal) of the complaining party, because those

are not part of the school laws of the state.” Id. Administrative appeals are only permitted when a

person is aggrieved by the school laws, a school board’s violation of the school laws, or its violation

of a written employment contract. TEX . EDUC. CODE § 7.057(a). In all other cases, a person may

resort directly to the courts.

6

Act of June 2, 1969, 61st Leg., R.S., ch. 889, § 1, sec. 11.13(a), 1969 Tex. Gen. Laws 2735, 2757, repealed

by Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58(a)(1), 1995 Tex. Gen. Laws 2207, 2498.

7

Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 7.057(a), 1995 Tex. Gen. Laws 2207, 2215 (codified

at T EX . E D U C . C O D E § 7.057(a)); see Clint Indep. Sch. Dist., __ S.W .3d at __ (noting that the current statute limited the

Commissioner’s authority); Larsen v. Santa Fe Indep. Sch. Dist., 296 S.W .3d 118, 126 n.10 (Tex. App.— Houston [14th

Dist.] 2009, pet. denied) (“The Texas Education Code was amended in 1995 to narrow the range of grievances over

which the Commissioner of Education retains jurisdiction.”).

8

B

The court of appeals held the McIntyres must exhaust administrative remedies because their

state-law claims “involve” the school laws and no exception to exhaustion applies. 457 S.W.3d at

486–90. The McIntyres’ primary response is that, as homeschoolers, they are exempt from

exhaustion because the Education Code applies only to “educational institutions supported in whole

or in part by state tax funds.” TEX . EDUC. CODE § 1.001(a). Both positions overlook the text of the

statute.

Students attending a bona-fide homeschool are not exempt from the Education Code’s

exhaustion requirement merely because they are exempt from Texas’ compulsory attendance laws.

The Education Code requires any “person”—not just public school students and their parents—to

exhaust administrative remedies when they are aggrieved by the school laws or a school board’s

violation of them. Id. § 7.057(a). Simply put, whether a claimant must exhaust administrative

remedies depends on the nature of the claims, not the identity of the claimant. Accordingly, the

McIntyres cannot avoid exhaustion merely by identifying themselves as homeschoolers.

Nonetheless, the mere fact that the McIntyres’ claims “involve” the school laws does not

mean they must exhaust administrative remedies. Rather, for administrative remedies to be

available, they must be aggrieved by either (1) the school laws themselves or (2) a school board’s

violation of the school laws. Id. The McIntyres meet neither condition.

Though the McIntyres’ claims relate to the Education Code, the McIntyres are not aggrieved

by the school laws. The school laws make attendance at public schools compulsory but exempt

certain children (such as those attending private school) from attending. TEX . EDUC. CODE

9

§§ 25.085–.086. They also make it a crime for a “parent with criminal negligence” to “fail[] to

require the child to attend school as required by law,” and the child is absent a certain number of

days. Id. § 25.093. Further, an attendance officer’s duties under the school laws include

investigating violations and enforcing school attendance by (among other things) “filing a complaint

in a county, justice, or municipal court against a parent” who criminally contributes to a child’s

failure to attend school. Id. § 25.091(b).

Clearly, the McIntyres’ grievance is not with the compulsory attendance law—they claim

homeschoolers like them are exempt from attendance. Neither is their grievance with the attendance

officer’s authority to investigate or even file criminal charges against a parent who contributes to

truancy. This mere grant of authority did not abridge the McIntyres’ rights or otherwise aggrieve

them. Instead, the McIntyres’ grievance is with the District’s and its attendance officer’s alleged

decision to file charges merely because their “homeschool verification requirements” were not met.

The McIntyres claim that the District and its attendance officer unconstitutionally investigated them

and filed criminal complaints against them. They do not claim to be aggrieved by the school laws.

Neither are the McIntyres aggrieved by a violation of the school laws—they claim the District

violated their rights under the Texas Constitution, not the school laws. For example, they claim that

the criminal charges for allegedly failing to meet the “verification requirements” deprived them of

due process because it was the District’s burden to prove the McIntyres did not offer a bona-fide

education, not the McIntyres’ burden to prove they did provide such an education. The school laws

neither establish the parties’ burden of proof nor place significant boundaries on what the District

may do while investigating alleged truancy. It is not the school laws, but the constitution, that the

10

McIntyres assert the District violated by charging them with a crime the District knew they did not

commit.

The McIntyres’ requested declarations confirm that their grievance is not with the Education

Code or the District’s violation of it. The McIntyres requested various declarations, including that:

• they were innocent of the criminal charges. This requires a determination that the

McIntyres violated the school laws, not the District.

• they could direct their children’s education “free from fabricated civil/criminal

charges.” This requires a determination that the District fabricated charges limiting

the right to homeschool. The Education Code does not prohibit the fabrication of

charges—other law does.

• the District’s prosecution policy is unlawful. This requires a determination that the

District could not prosecute the McIntyres for simply refusing to provide information

about their curriculum. The Education Code does not decide whether a person may

be charged for refusing to provide evidence of innocence.

• the District “cannot compel [Texas Education Agency] curriculum compliance.”

This requires a determination that the McIntyres’ privacy rights, among others, tie the

District’s hands. It does not depend on a violation of the Education Code.

• the District and its attendance officer cannot “use the threat of prosecution and/or

the maintenance of criminal charges to try to obtain information . . . to which they

are not entitled.” This requires determining that the District violated other law by

11

coercing the McIntyres to provide information to which the Education Code did not

entitle it.

Although these declarations may relate to the school laws, they neither challenge the school

laws nor assert the District violated them. In other words, the Commissioner has no jurisdiction over

the McIntyres’ claims, and the McIntyres have no administrative remedies to exhaust.

C

The dissent asserts that we construe the exhaustion statute too narrowly. According to the

dissent, exhaustion is required not only when a person’s “legal rights have been invaded, infringed

upon, or adversely affected by the school laws themselves,” but also when they have been infringed

by “acts or conduct pursuant to the school laws of the state.” Post at __. The District and its

employees investigated the McIntyres and filed charges pursuant to the school laws, so exhaustion

is required, the dissent contends.

But the Legislature intended the Commissioner of Education’s authority to be more limited.

Employment-contract disputes aside, exhaustion is only required when a person is aggrieved by the

school laws or a district’s violation of them. TEX . EDUC. CODE § 7.057(a). To this clear Legislative

mandate, the dissent would add its own, requiring exhaustion not only for grievances with the school

laws or actions violating them, but also for actions taken pursuant to them. If the Legislature meant

this, it would have said it.

The dissent urges that plaintiffs cannot creatively plead around exhaustion by guising claims

truly subject to the Commissioner’s review as constitutional claims. True, but neither may school

districts avoid the courts by conflating all grievances with their actions as grievances with the school

12

laws themselves. Yet this is what the dissent’s approach would allow, mandating exhaustion for the

McIntyres and countless other parents or students aggrieved not by the school laws but by a school

district’s actions.

Consider, for example, if a student alleged that school security personnel unreasonably

searched her. See Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (confirming

that the Fourth Amendment applies in school settings). Though the Education Code authorizes

school districts to commission peace officers to protect students’ safety, TEX . EDUC. CODE

§ 37.081(a), (d), the student would be aggrieved by the officer’s actions, not by the school laws.

Or perhaps a school district suppressed student speech and engaged in viewpoint

discrimination. The Education Code broadly empowers school officials to maintain law and order,

id. §§ 37.001–.313, but the First Amendment prohibits them from silencing viewpoints that do not

materially and substantially interfere with maintaining order at school, Tinker v. Des Moines Indep.

Sch. Dist., 393 U.S. 503, 512–13 (1969). The student would be aggrieved by the school district’s

violation of the First Amendment, not by the Education Code’s authorization to maintain order.

So it is here. The McIntyres’ grievance is not with the school laws, but with the District’s

alleged violation of their constitutional rights. Exhaustion is not required.

The dissent also argues the McIntyres must exhaust administrative remedies because their

claims implicitly allege a violation of the school laws. The dissent asserts the McIntyres allege the

District and its attendance officer acted outside the scope of their authority, which is a violation of

the school laws. But the McIntyres assert that the Texas Constitution, not the school laws, limited

their authority and prohibited their actions. The McIntyres’ claims are not predicated on a violation

13

of the school laws, and their constitutional claims may be reached without deciding whether the

District violated the school laws.

Indeed, what if a school board required school attendance officers—acting “pursuant to” their

investigatory duties under the school laws—to take actions violating a parent’s Fourth Amendment

right against unreasonable searches and seizures? The parent’s claim that the school board exceeded

its authority would not assert a violation of the school laws, but a violation of the United States

Constitution. Exhaustion would not be required. The same holds true for the McIntyres.

IV

The McIntyres made several claims against the District’s attendance officer under section

1983 of Title 42 of the United States Code, but the court of appeals held qualified immunity shielded

him from personal liability. See 457 S.W.3d at 496–99. Here, the McIntyres challenge only the

officer’s “entitlement to qualified immunity on the substantive due process claim,” arguing he

violated their clearly established rights under the Fourteenth Amendment by “swear[ing] under oath

to the commission of a crime” he knew they did not commit.

Under the doctrine of qualified immunity, “courts may not award damages against a

government official in his personal capacity unless ‘the official violated a statutory or constitutional

right,’ and ‘the right was “clearly established” at the time of the challenged conduct.’” Lane v.

Franks, 134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

Given the Fifth Circuit’s repeated holdings that there is “no Fourteenth Amendment ‘liberty interest’

or substantive due process right to be free from criminal prosecution unsupported by probable

14

cause,”8 the McIntyres cannot assert the attendance officer violated a clearly established federal right.

Qualified immunity shields the officer from the McIntyres’ section 1983 claim.

***

The Legislature has not crafted administrative remedies for the McIntyres’ claims.

Accordingly, the court of appeals’ judgment is reversed insofar as it dismissed plaintiffs’ claims for

failure to exhaust administrative remedies. We affirm the court of appeals’ judgment to the extent

it dismissed plaintiffs’ claims based on qualified immunity. We remand the case to the court of

appeals for consideration of the parties’ remaining jurisdictional arguments.

__________________________

John P. Devine

Justice

Opinion Delivered: June 24, 2016

8

Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010) (citing Albright v. Oliver, 510 U.S. 266,

270–71 (1994) (plurality op.)); see also Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc) (“[W ]e

conclude that no such freestanding constitutional right to be free from malicious prosecution exists.”). But cf. Cole v.

Carson, 802 F.3d 752, 773 (5th Cir. 2015) (“W here police intentionally fabricate evidence and successfully get someone

falsely charged with a felony as cover for their colleagues’ actions, and the Fourth Amendment is unavailing, there may

be a due process violation.”).

15