el-paso-independent-school-district-dr-lorenzo-garcia-and-mark-mendoza-v ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
EL PASO INDEPENDENT SCHOOL
DISTRICT, DR. LORENZO GARCIA, §
AND MARK MENDOZA,
§ No. 08-11-00329-CV
Appellants,
§ Appeal from
v.
§ 327th District Court
MICHAEL McINTYRE AND
LAURA McINTYRE, INDIVIDUALLY § of El Paso County, Texas
AND ON BEHALF OF THEIR
CHILDREN, K.M., L.M., C.M., M.M., § (TC # 2007-3210)
AND L.M.,
§
Appellees.
§
OPINION
In this accelerated interlocutory appeal, we must balance a couple’s right to home school
their children against the rights of a school district to investigate the curriculum utilized.
Michael and Laura McIntyre, individually and on behalf of five of their minor children, filed this
lawsuit for damages and declaratory and injunctive relief after Class C misdemeanor truancy
complaints were filed in a justice court against three of the children. 1 Originally, the McIntyres
filed suit against three family members, the El Paso Independent School District (EPISD), and
five of the District’s employees. The claims against the family members and three of the five
1
Because we will mention many members of the McIntyre family, we will refer to them by their given names.
District employees were later dismissed, leaving the District, former superintendent Dr. Lorenzo
Garcia, and attendance officer Mark Mendoza as the only remaining defendants.
FACTUAL SUMMARY
The McIntyres have nine children, including the five minor children who are parties to
the law suit. After completion of the Fall 2004 semester, the McIntyres withdrew their children
from private school to begin home schooling them. Initially, the children were taught out of
empty space in a motorcycle dealership owned by Michael and his twin brother, Tracy. Tracy
testified in his deposition that during the time home schooling operated out of the dealership, he
never observed the children pursuing traditional schoolwork. While the children would sing or
play instruments, he never saw them reading books or doing arithmetic, nor did he observe any
computers or other school equipment. Tracy overhead one of the McIntyre children tell a cousin
that they did not need to do schoolwork because they were going to be raptured. Tracy discussed
the situation with his parents, Gene and Shirene. In August 2005, due to a family dispute, the
home school was moved from the motorcycle dealership to a rental house owned by the
McIntyres.
Complaint To The District and Mendoza’s Investigation
In January 2006, the District received an anonymous complaint that the McIntyre
children were not being educated. In November, Gene and Shirene met with Mark Mendoza, the
District’s designated attendance officer, and expressed concerns that their grandchildren were not
attending school or otherwise receiving a proper education. After the meeting, Mendoza
confirmed that the oldest of the McIntyre children, Tori, had run away from home at age
seventeen so she could “attend school.” He discovered that when Tori enrolled at Coronado
High School, she was unable to provide any information regarding the level of her education or
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the curriculum provided as part of her home school education. The McIntyres refused to provide
any information to the District on Tori’s behalf. As a result, Tori was placed as a second
semester freshman, a year and a half behind her age group.
In December 2006, Mendoza asked a representative from Hornedo Middle School to visit
the McIntyre home and inquire about the curriculum used to teach their children. The McIntyres
answered the door, but Laura said only that she was tired of being harassed and would call her
attorney. Lynda Sanders of Polk Elementary School was also asked to go to the McIntyre home
and obtain a signed home school verification form. The McIntyres refused to sign the form or
provide any other information regarding their home school curriculum. Following her visit,
Sanders faxed the home school verification form to a Home School Legal Defense Association
(HLSDA) attorney in Washington. Sanders also reported to the campus principal that the
Mclntyres were uncooperative and had refused to sign the form. Sanders later received a letter
from the HSLDA attorney. The letter claimed that the McIntyres were “in full compliance” but
that they declined to “submit any additional information.” The letter did not reflect that the
attorney was licensed in Texas, or had any personal knowledge of the educational studies
occurring in the McIntyre home. In January 2007, following their refusal to provide information
to campus personnel, various notices and warnings were given to the McIntyres notifying them
of their children’s failure to attend school, and requesting conferences. The McIntyres did not
cooperate with any of the requests for information or meetings.
Truancy Complaints Are Filed
Relying on information provided by the children’s grandparents, his confirmation of
information regarding Tori’s inability to describe her home school education, and the refusal of
the McIntyres to provide the District with any written assurance regarding the curriculum they
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were using “from somebody who had firsthand knowledge of the homeschooling education that
was happening in the home,” Mendoza filed truancy complaints. In the blanks that would
normally have listed the dates of absence on the truancy complaint, Mendoza wrote, “Has not
met home school verification requirements.” According to Mendoza, he did not believe that the
McIntyres had provided sufficient evidence of a bona fide home school.2
After the complaints were filed, HSLDA sent a second letter to Sanders, with copies to
other District personnel. The letter was essentially identical to the first letter, but it also included
a threat to file suit.
Communications After Truancy Complaints Are Filed
After receiving the citations, Laura called Mendoza. She recorded the conversation and a
transcript of the recording is contained in the record. Janet Flores, the Juvenile Case Manager
for the Justice of the Peace Court where the truancy complaints were filed, testified that she
mailed notices of the truancy charges to the McIntyres. The notices advised them of their plea
options and their rights, including rights to a jury trial, to retain counsel, and to subpoena
witnesses. Laura called Flores after receiving notice and told her that she and her husband were
home schooling their children. Flores informed Laura that she could submit documentation
showing that she was, in fact, providing an education at home to her children, but Laura
responded that she did not feel that it would be “right” to do so.3
2
The truancy complaints were filed without any screening or review by the District Attorney’s Office, as was
customary at the time. As attendance officer, Mendoza had the authority to file a truancy complaint, but after filing,
an Assistant District Attorney would ultimately decide whether to try or dismiss the case. However, per subsequent
agreement of the EPISD and the District Attorney’s Office, the DA now screens truancy reports involving alleged
home school situations prior to filing, and cases will not be filed without its approval.
3
In an affidavit submitted over two years after filing this lawsuit, Laura identified the curriculum that they had
purchased as the A Beka curriculum, the same curriculum that had been used at the children’s private school. When
Mendoza was attempting to ascertain whether they were conducting a bona fide home school, however, they refused
to identify any curriculum that they were using.
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PROCEDURAL HISTORY
In July 2007, the McIntyres initiated the instant suit. They sought declaratory and
injunctive relief and damages based on alleged violations of the Texas Education Code, the
Texas Religious Freedom Restoration Act (TRFRA), the Texas Constitution, and the United
States Constitution.
Truancy Complaints Investigated and Ultimately Dismissed
Once this suit was filed, the District informed Matthew Moore, an assistant district
attorney, about the case and its history. Moore was asked to use his independent judgment in
pursuing the truancy complaints. The McIntyres later entered pleas of not guilty in all of the
truancy cases, and requested a separate jury trial for each. On September 7, 2007, Moore wrote a
letter to the McIntyres advising that if they would provide a signed statement that they were
meeting state requirements, he would dismiss the truancy charges. The McIntyres refused to do
so. In October 2007, Moore contacted Tori and asked if she would vouch for the fact that her
parents were using a curriculum, but Tori declined to get involved. Moore testified in his
deposition that he believed Tori and her grandparents would have testified that the children were
not being educated or “learning anything,” but they did not want to testify. Ultimately, Moore
decided to dismiss the truancy complaints.
Motions in the Trial Court
The District defendants filed pleas to the jurisdiction and a motion for summary judgment
based on the McIntyres’ failure to exhaust administrative remedies; a plea to the jurisdiction as
to the McIntyres’ TRFRA claim; motions to dismiss based on the election of remedies provision
in Section 101.106 of the Texas Civil Practice & Remedies Code; and a motion for summary
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judgment based on the Education Code, official immunities as to the McIntyres’ state law claims,
and absolute and qualified immunities as to the McIntyres’ Section 1983 federal claims.
Issues For Review
Appellants bring nine issues for review. In Issue One, the District complains that the trial
court erred in denying its plea to the jurisdiction with respect to the McIntyres’ failure to provide
the required pre-suit notice of their TRFRA claims. The McIntyres have conceded this point. In
Issue Two, EPISD argues that the trial court erred in denying its plea to the jurisdiction based on
the McIntyres’ failure to exhaust administrative remedies prior to filing suit. In Issues Five, Six,
Seven, and Eight, Appellants present various arguments in support of their claim that the trial
court erred in refusing to dismiss the state law claims against the District employees. In Issue
Five, they argue that based on the election of remedies provision in Texas Civil Practice and
Remedies Code 101.106, the trial court erred in allowing the McIntyres to pursue state law
claims against both the District and its employees, despite the District’s motion to dismiss. In
Issue Six, Appellants allege an exhaustion of administrative remedies claim closely related to
that in Issue Two. Specifically, in Issue Six, Appellants allege that the trial court erred in
denying the District employees’ plea to the jurisdiction and (first) motion for summary judgment,
and in ruling that the McIntyres were not required to exhaust administrative remedies despite
Section 22.0514 of the Texas Education Code. In Issues Seven and Eight, Appellants contend
that the McIntyres’ state law claims against the District employees were barred by professional
and governmental immunity, and therefore the trial court erred in denying Mendoza’s second
amended motion for summary judgment on immunity grounds.
Turning to the McIntyres’ federal law claims, Appellants complain in Issues Three and
Four that the trial court erred in refusing to grant summary judgment. Specifically, Issue Three
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posits that the employees were entitled to absolute immunity from the federal claims while Issue
Four posits that the employees were entitled to qualified immunity with respect to the same
claims.
Finally, in Issue Nine, Appellants allege that the trial court erred in overruling their
objections to the McIntyres’ summary judgment evidence. Specifically, they argue that the trial
court should have sustained their objections with respect to Laura’s February 2010 and March
2011 affidavits.
In sum, Appellants ask that we: (1) reverse all three disputed orders of the trial court; (2)
render judgment dismissing all of the McIntyres’ state law claims against the District; (3)
dismissing all claims of any nature against Dr. Garcia and Mendoza with prejudice; (4) awarding
Appellants their costs and fees incurred herein and any such further relief to which they may be
entitled; and (4) remanding this case to the trial court for further proceedings regarding the
claims and counterclaims that remain pending there, consistent with our opinion and judgment.
THE LEEPER DECISION
Both parties rely heavily on the Texas Supreme Court’s decision in Texas Education
Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994). Therefore, we begin our discussion with an
overview of home school law in Texas.
In Leeper, home school parents and home school curriculum providers (the plaintiffs)
brought a class action suit against state officials (the defendants), challenging construction of
compulsory attendance laws. Leeper, 893 S.W.2d at 432. The plaintiffs sought a declaratory
judgment that the defendants had misinterpreted the private school exemption under Section
25.086(a) of the Texas Education Code. Id. at 438. The plaintiffs also claimed that the
defendants “enforcement of the compulsory attendance law infringed upon their constitutional
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rights, in violation of the Civil Rights Act, 42 U.S.C. § 1983.” Id. As a result, the plaintiffs
sought an injunction prohibiting all school districts and attendance officers from enforcing the
compulsory attendance law against bona fide home schools. Id.
The Texas Supreme Court began its analysis by setting the historical backdrop of the
Texas school system. Id. at 433-34. It looked to the first compulsory attendance law enacted in
1916 and traced the development of the Education Code and compulsory attendance laws
forward. Id. The court then addressed the issue of whether a home school could fall within the
private or parochial school exemption from the compulsory attendance requirements. Id. The
court concluded that a home school can be a private school within the meaning of the statutory
exemption found in Section 25.086(a)(1).
Leeper does not hold, or even imply, that every alleged “home school” automatically fits
within the exemption. Rather, the case simply allows certain home schools meeting specific
requirements to qualify as “private or parochial schools” for purposes of exemption. In fact, the
plaintiffs did not argue that every home school falls within the exemption, but only, “homes in
which children are taught in a bona fide manner from a curriculum designed to meet basic
education goals.” Leeper, 893 S.W.2d at 443. The central issue was not whether the school
district had the authority to investigate truancy claims or to request information from parents of
home school children regarding their curriculum. Instead, the question was whether any home
school could fit within the private school exemption and whether or not the use or non-use of
standardized achievement tests by home school parents could be outcome determinative of the
home school status under the applicable exemption. Indeed the plaintiffs recognized that the use
of standard achievement tests could be considered in ascertaining whether a home school
curriculum was being taught in a bona fide manner, but maintained that test scores could not be
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the determining factor. The court agreed. But nothing in Leeper suggests that an attendance
officer does not have the right to investigate truancy claims, or that home school parents need not
prove they are teaching their children in a bona fide manner from an appropriate curriculum.
Leeper merely provides the possibility for a home school to qualify for exemption from
compulsory attendance laws and prevents the determination as to whether or not an individual
home school qualifies from turning on whether the home school provides standardized
achievement test scores.
TEXAS RELIGIOUS FREEDOM RESTORATION ACT
In Issue One, Appellants argue that the trial court erred in denying the District’s plea to
the jurisdiction as to the McIntyres’ claims under the TRFRA because they failed to meet the
pre-suit notice requirements under Chapter 110 of the Texas Civil Practice and Remedies Code.
As we have noted, the McIntyres concede the issue. We sustain Issue One. We reverse and
render judgment in the District’s favor on this claim.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
In Issue Two, Appellants argue that the trial court erred by denying the District’s plea to
the jurisdiction and special exceptions because the McIntyres failed to exhaust their available
administrative remedies as to their remaining state law claims. Standard of Review
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of
action without regard to whether the claims have merit. Bland Independent School District v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction contests the trial court’s
authority to determine the subject matter of the cause of action. State v. Holland, 221 S.W.3d
639, 642 (Tex 2007). The existence or absence of subject matter jurisdiction is a question of law
which we review de novo. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d
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217, 226 (Tex. 2004). We look to the plaintiffs’ petition to determine whether the facts as pled
affirmatively demonstrate that jurisdiction exists. Holland, 221 S.W.3d at 642-43. We must
accept the allegations in the petition as true, construe them in favor of the pleading parties, and
examine the pleaders’ intent. Miranda, 133 S.W.3d at 227. We also consider any evidence
relevant to jurisdiction without considering the merits of the claim beyond the extent necessary
to determine jurisdiction. Id. However, if the relevant evidence is undisputed or fails to raise a
fact question on the jurisdiction issue, the trial court rules on the plea as a matter of law. Id.
at 228.
The Exhaustion of Remedies Doctrine
Under Texas law, an aggrieved party whose claim concerns the administration of school
laws and involves disputed fact issues is required to exhaust all administrative remedies prior to
filing suit. Nairn v. Killeen Independent School Dist., 366 S.W.3d 229, 240 (Tex.App.--El Paso
2012, no pet.), citing Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570
(1945); Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d 792, 795 (Tex.App.--El Paso 2005, pet.
denied); see also TEX.EDUC.CODE ANN. § 7.057 (West 2012). “Requiring exhaustion of
administrative remedies is not meant to deprive an aggrieved party of any legal rights. It is
meant, rather, to provide an orderly procedure by which aggrieved parties may enforce those
rights.” Ysleta Independent School District v. Griego, 170 S.W.3d 792, 795 (Tex.App.--El Paso
2005, pet. denied), citing Hinojosa v. San Isidro Indep. Sch. Dist., 273 S.W.2d 656, 657-58
(Tex.Civ.App.--San Antonio 1954, no writ). The requirement applies to grievances arising under
school laws whether it is against a professional employee of a school district or a school district
itself. See Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex.App.--Tyler 1997, pet. denied)(holding
that regardless of whether a grievance is against a professional employee of a school district, or a
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school district itself, a complainant must exhaust his administrative remedies in order to facilitate
settlement before resorting to judiciary for resolution). This requirement is consistent with long
standing public policy favoring keeping school controversies, as far as possible, out of the courts.
See Palmer Pub. Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158, 160 (Tex.Com.App. 1937)(also
stating, “Proper procedure for settlement of such controversies has been, we think, plainly
provided by appeal to school authorities, and should be followed and exhausted before resort to
legal proceedings in the courts.”).
Exceptions to the Doctrine
Despite these general rules, there are several recognized exceptions. Exhaustion of
administrative remedies for claimants seeking relief from the administration of school laws is not
necessary if: (1) the aggrieved party will suffer irreparable harm and the administrative agency
is unable to provide relief; (2) the claims are for a violation of a constitutional or federal
statutory right; (3) the cause of action involves pure questions of law and the facts are not
disputed; (4) the Commissioner of Education lacks jurisdiction over the claims; (5) the
administrative agency acts without authority; or (6) the claims involve parties acting outside the
scope of their employment. Dotson v. Grand Prairie Independent School Dist., 161 S.W.3d 289,
291-92 (Tex.App.--Dallas 2005, no pet.), citing Gutierrez v. Laredo Independent School District,
139 S.W.3d 363, 366 (Tex.App.--San Antonio 2004, no pet.), Jones v. Dallas Independent
School District, 872 S.W.2d 294, 296 (Tex.App.--Dallas 1994, writ denied), and Mitchison v.
Houston Independent School District, 803 S.W.2d 769, 773-74 (Tex.App.--Houston [14th Dist.]
1991, writ denied).
In addition to the administrative scheme set forth as part of the Education Code, the
District maintains policies regarding the filing of complaints by parents or members of the
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public. The District’s policy provides for three different “levels” of administrative review.
Specifically, complaints are categorized in relevant part as follows:
LEVEL ONE An individual who has a complaint or concern shall request a
conference with the appropriate administrator within 15 days of the
event or action that is the subject of the complaint. The administrator
shall hold a conference with the individual within seven days of the
request. The administrator shall have seven days following the
conference within which to respond in writing to the complainant.
LEVEL TWO If the outcome of the conference with the administrator is not to the
complainant’s satisfaction or the time for a response has expired, the
complainant may request a conference with the superintendent or
designee. The request must be filed within seven days following receipt
of a response or, if no response is received, within seven days of the
response deadline. The superintendent or designee shall hold the
conference within seven days after receiving the request.
Prior to or at the time of the conference the complainant shall submit a
written complaint that includes his or her signed statement of the
complaint, any evidence in its support, the solution sought, and the date
of the conference with the administrator. The superintendent or
designee shall have seven days following the conference within which
to respond in writing to the complainant.
LEVEL THREE If the outcome of a conference with the superintendent or designee is
not to the complainant’s satisfaction or if the time for a response has
expired, the complainant may submit to the superintendent or designee
a request to place the matter on the agenda of a future Board meeting.
The request shall be in writing and must be filed within seven days of
the response or, if no response is received, within seven days of the
response deadline.
The Superintendent shall inform the complainant of the date, time, and
place of the meeting, in writing.
The policies apply to complaints against the District or a District employee acting within the
scope of employment. Nothing in the policy limits the application to complaints filed by a
parent of a District student.
The McIntyres claims involve the “school laws of the State” and it is clear that they did
not pursue administrative remedies prior to filing suit. Unless an exception to the general rule
applies, the trial court lacked subject matter jurisdiction. See Hitchcock v. Board of Trustees
Cypress-Fairbanks Independent School District, 232 S.W.3d 208, 213 (Tex.App.--Houston [1st
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Dist.] 2007, no pet.)(until all administrative remedies have been exhausted, a trial court lacks
subject matter jurisdiction). However, before we address whether the causes of action fall within
an exception to the exhaustion requirement, we first address the McIntyres contentions that: (1)
based on Section 1.001(a) of the Texas Education Code, no administrative scheme set forth in
either Title 1 or Title 2 of the Code applies to their children because their children never attended
public school; and (2) that the filing of the truancy complaint in justice court eliminated any
exhaustion of administrative remedies requirement.
The “school laws of this state” include Titles 1 and 2 of the Texas Education Code “and
rules adopted under those titles.” See TEX.EDUC.CODE ANN. § 7.057(f)(2). The McIntyres
assert that because their children never attended public school, they are essentially exempt. This
argument rests on the introductory language in Section 1.001(a) which provides: “This code
applies to all educational institutions supported in whole or in part by state tax funds unless
specifically excluded by this code.” TEX.EDUC.CODE ANN. § 1.001(a). Appellants argue that
while Section 1.001(a) indicates that institutions which receive state tax funds are subject to the
Education Code, it does not expressly indicate that all other institutions are not subject to the
Code. See Institute for Creation Research Graduate School v. Texas Higher Education
Coordinating Board, No. A-09-CA-382-SS, 2010 WL 2522529, at *6 (W.D.Tex. June 18, 2010,
no pet.)(finding that Section 1.001(a) “does not limit the applicability of the Education Code
only to institutions supported by state tax funds.”). We agree.
Next, we address the McIntyres claim that they were exempt from the exhaustion of
administrative remedies requirement based on the fact that the District filed truancy charges
before they filed their lawsuit. According to the McIntyres, the District sought judicial
intervention such that the McIntyres were not required to pursue administrative remedies.
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However, the truancy complaints were filed in the name of the State of Texas; the District was
not a party to the justice court proceedings. Accordingly, the filing of truancy charges did not
negate the McIntyres’ duty to exhaust administrative remedies prior to filing suit.
Having established the existence of an applicable administrative scheme and the
McIntyres’ failure to exhaust their administrative remedies thereunder, we next address whether
some exception to the general rule applies such that the McIntyres were excused from any
obligation to first exhaust their administrative remedies.
Questions of Fact or Law?
Appellants argue that the dispute involves questions of fact rather than pure questions of
law, thereby requiring the McIntyres to exhaust their administrative remedies before filing suit.
The McIntyres counter that their claims do not involve questions of fact, and since their claims
involve only issues that are purely questions of law, they were not required to exhaust their
administrative remedies. Although the McIntyres acknowledge the existence of many disputed
facts, they claim that none affects the issue on which the District contends exhaustion of
administrative remedies was required. The McIntyres frame the issue thusly:
[D]oes the District have the authority to demand to review (and, by implication,
approve or disapprove) a home school’s curriculum and obtain progress reports
for its students (or require compliance with TEA-mandated curriculum as an
alternative), and file criminal charges as a consequence for failure to capitulate to
this demand?
We agree with Appellants that a fact issue exists. The type of factual dispute found here
is exactly the type of claim that should be reviewed through the administrative process before the
court accepts jurisdiction. See Hicks v. Lamar Consolidated Independent School District, 943
S.W.2d 540, 543 (Tex.App.--Eastland 1997, no writ); Muckelroy v. Richardson Independent
School District, 884 S.W.2d 825, 830 (Tex.App.--Dallas 1994, writ denied). The allegations in
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the McIntyres pleadings support our conclusion. They seek “a declaration that [the McIntyres]
are innocent as to all charges filed by EPISD.” The determination of a party’s guilt is by
definition a question of fact. See BLACK’S LAW DICTIONARY 1260 (7th ed. 1999)(providing an
example of a “question of fact” as “whether a particular criminal defendant is guilty of an
offense.”). The McIntyres also sought a declaration that they could continue to direct the
“education of their children and/or pursue their education free from fabricated civil/criminal
charges.” If this particular claim does not include a factual determination, then it also does not
provide a justiciable request for declaratory relief. In other words, if the request seeks only a
judicial declaration that Appellants are not permitted to violate state law, it is not justiciable
because there is no controversy with respect to whether Appellants must abide by Texas law.
See Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.
1993)(holding that a declaratory judgment is appropriate only if a justiciable controversy exists
as to the rights and status of the parties and the controversy will be resolved by the declaration
sought). “To constitute a justiciable controversy, there must exist a real and substantial
controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.”
Bexar-Medina-Atascosa Counties Water Control and Improvement Dist. No. 1 v. Medina Lake
Protection Ass’n, 640 S.W.2d 778, 779-80 (Tex.App.--San Antonio 1982, writ ref’d n.r.e.);
Chapman v. Marathon Mfg. Co., 590 S.W.2d 549, 552 (Tex.Civ.App.--Houston [1st Dist.] 1979,
no writ); Davis v. Dairyland County Mutual Insurance Company of Texas, 582 S.W.2d 591, 593
(Tex.Civ.App.--Dallas 1979, writ ref’d n.r.e.); Sub-Surface Constr. Co. v. Bryant-Curington,
Inc., 533 S.W.2d 452, 456 (Tex.Civ.App.--Austin 1976, writ ref’d n.r.e.); Littlejohn v. Johnson,
332 S.W.2d 439, 441 (Tex.Civ.App.--Waco 1960, no writ).
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Finally, the determination of whether the McIntyres meet the requirements of a bona fide
curriculum under Leeper and therefore qualify as exempt from the compulsory school attendance
requirements involves a fact issue. This determination would require the McIntyres to submit
the same information Mendoza requested but they refused to provide. Therefore, to the extent
the trial court’s conclusion was based on a finding that the controversy involves only questions
of law, it was erroneous.
Excused by Constitutional Allegations?
Next, we address Appellants’ contention that the presence of constitutional allegations
did not excuse the McIntyres from the requirement to exhaust administrative remedies. There is
no direct administrative remedy for claims that a school board took action that violated the
constitutional rights of the complaining party, because those are not part of the school laws of the
state. Jones v. Clarksville Independent School Dist., 46 S.W.3d 467, 474 (Tex.App.--Texarkana
2001, no writ). However, where the constitutional claims “are only ancillary to and supportive
of” a complaint about the school district’s application of school law, the complainant must first
exhaust the administrative process. Dotson, 161 S.W.3d at 292. In addition, a party who alleges
a constitutional claim must first exhaust available administrative remedies that may moot the
constitutional claim.
Appellants contend that the constitutional issues presented here “do not stand alone as an
attack on the actions . . . of the District,” but instead are “inextricably intertwined with, and in
fact subject to, their claim that they are in compliance with the compulsory school attendance
provisions of the Education Code.” In addition, Appellants assert that because the McIntyres
constitutional claims can be decided on non-constitutional grounds, i.e. whether they fall within
the Leeper exception, a court should not address their constitutional claims.
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Several courts have recognized that exhaustion is required when a constitutional issue
involves the administration of school laws and turns on fact issues. See Poole v. West Hardin
County Consolidated Independent School District, 385 S.W.3d 52 (Tex.App.--Beaumont 2011),
rev’d on other grounds, 384 S.W.3d 816 (Tex. 2012); Janik v. Lamar Consolidated Independent
School District, 961 S.W.2d 322, 323 (Tex.App.--Houston [1st Dist] 1997, pet. denied). The
McIntyres’ claims all relate to the administration and applicability of school laws, specifically to
the laws requiring attendance officers to investigate complaints of truancy and filed criminal
charges based on the outcome of those investigations. Therefore, because all of the McIntyres’
claims relate directly to school laws and the scope of their application, and the outcome of such
dispute renders their constitutional claims moot, they were not excused of their duty to exhaust
simply by asserting such constitutional claims.
Irreparable Harm?
The next exception to the exhaustion of administrative remedies is irreparable harm. No
exhaustion is required where irreparable harm will be suffered and the agency cannot provide
relief. See Houston Federation of Teachers, Local 2415 v. Houston Independent School District,
730 S.W.2d 644, 645 (Tex. 1987). Appellants argue that the McIntyres were never at risk of
irreparable harm. More specifically, Appellants assert that the McIntyres’ claims that they were
“under continuing threat” and that they “faced the prospect of additional criminal complaints,”
are nothing more than unsupported speculation. According to Appellants, the filing of
misdemeanor truancy complaints cannot be considered to cause “irreparable injury.”
As Appellants correctly point out, we must presume that public officials will discharge
their duties lawfully and in good faith. See Vandygriff v. First Savings and Loan Ass’n, 617
S.W.2d 669, 673 (Tex. 1981); Kimbrough v. Walling, 371 S.W.2d 691, 692 (Tex. 1963);
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Eldorado Independent School District v. Becker, 120 S.W.2d 476, 477 (Tex.Civ.App.--Austin
1938, writ dism’d). Here, Mendoza’s deposition testimony supports this presumption. He
specifically stated that the District “has no intention of filing this same case against this
particular set of parents.” The McIntyres’ attorney then asked Mendoza, “If this conduct was
criminal in ‘07, why wouldn’t it be in ‘10?” Mendoza responded:
Sir, one of the internal procedures is to review the case with the assistant district
attorney. The assistant district attorney has dismissed these charges, and so
therefore, filing the same type of charge unless there is some credible evidence
that something has changed dramatically in the household, would be moot.
In addition, written warnings were provided to McIntyres before any truancy complaints
were filed. Therefore, the McIntyres could have initiated the administrative process before the
truancy complaints were even filed. Had the McIntyres pursued their administrative remedies, it
must be presumed that the school administrators, the Superintendent, the Board of Trustees, and
the Commissioner of Education would have all acted in accordance with the law. Similarly,
should the District or its employees be presented with “credible evidence that something has
changed dramatically in the household” in the future triggering another investigation, we must
presume officials will act in accordance with applicable laws. Had the truancy charges
proceeded in the justice court, the McIntyres could have defended the claims in court, and it must
likewise be presumed that the justice court would have afforded them a fair trial, and ruled in
accordance with the law.
Any relief the McIntyres sought with respect to injunctive relief from further litigation
was inappropriate as to the District or the District employees because once the truancy
complaints were filed, the District Attorney had the authority to dismiss the case. We thus
conclude that the trial court erred in finding that the McIntyres were not required to exhaust
administrative remedies before filing suit. Because the remaining state law claims against the
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District should have been dismissed, we sustain Issue Two and reverse and render judgment in
the District’s favor.
DISMISSAL OF STATE LAW CLAIMS AGAINST DISTRICT EMPLOYEES:
ELECTION OF REMEDIES
In Issues Five, Six, Seven, and Eight, Appellants present various issues all in support of
the argument that the trial court erred by refusing to dismiss the McIntyres’ state law claims
against the District employees. In Issue Five, Appellants argue that the trial court erred in
denying their motion to dismiss, special exceptions and plea to the jurisdiction based on the
election of remedies provision contained in Texas Civil Practice and Remedies Code Section
101.106. In Issue Six, Appellants complain that the trial court erred because the McIntyres failed
to exhaust their administrative remedies.4 Finally, in Issues Seven and Eight, Appellants contend
that the trial court erred because the McIntyres’ state law claims against District employees are
barred by professional immunity and qualified immunity. Issue Five is dispositive on this
subject.
A plea to the jurisdiction based on sovereign or governmental immunity challenges a trial
court’s jurisdiction. See Miranda, 133 S.W.3d at 226. We review the trial court’s ruling de
novo. See id. As originally enacted, Section 101.106 was entitled “Employees Not Liable After
Settlement or Judgment,” and stated:
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.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 TEX.GEN.LAWS 3242, 3305 (current
version at TEX.CIV.PRAC.&REM.CODE ANN. § 101.106). Thus, the statute provided some
protection for employees when claims against the governmental unit were reduced to judgment
4
Section 22.0514 of the Texas Education Code requires the exhaustion of remedies before filing suit against a
professional employee of a school district. See TEX.EDUC.CODE ANN. § 22.0514 (West 2012).
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or were settled. See Mission Consolidated Independent School District v. Garcia, 253 S.W.3d
653, 656 (Tex. 2008). Under the original version, nothing prevented a plaintiff from pursuing
alternative theories against both employees and the governmental unit through trial or other final
resolution. See id. In 2003, as part of tort reform efforts, the Legislature amended Section
101.106. Id. at 656-57. Today, the relevant subsections read as follows:
(a) The filing of a suit under this chapter against a governmental unit constitutes
an irrevocable election by the plaintiff and immediately and forever bars any suit
or recovery by the plaintiff against any individual employee of the governmental
unit regarding the same subject matter.
. . .
(e) If a suit is filed under this chapter against both a governmental unit and any of
its employees, the employees shall immediately be dismissed on the filing of a
motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee’s employment and if it could have been
brought under this chapter against the governmental unit, the suit is considered to
be against the employee in the employee’s official capacity only. On the
employee’s motion, the suit against the employee shall be dismissed unless the
plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion
is filed.5
TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a), (e), (f)(West 2011). Under the current election-
of-remedies provision, a plaintiff is required to decide at the time of filing suit whether an
employee acted independently and is solely liable, or whether the employee acted within the
general scope of his or her employment, thereby making the governmental unit vicariously liable
for the employee’s acts.6 See Garcia, 253 S.W.3d at 657. In doing so, the election of remedies
5
The District is a “governmental unit” as defined by Section 101.001(3) of the Texas Civil Practice and Remedies
Code. Likewise, Dr. Lorenzo Garcia and Mark Mendoza are “employees” of the District. See TEX.CIV.PRAC.&
REM.CODE ANN. §§ 101.001(2), (3).
6
Under Texas Civil Practice and Remedies Code Sections 104.001 and 104.002, State agencies are required to
indemnify their employees for litigation expenses if the employee’s actions were within the course and scope of his
or her employment. See TEX.CIV.PRAC.&REM.CODE ANN. §§ 104.001, 104.002.
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provision is designed to reduce the resources that the government and its employees must use in
defending redundant litigation and alternative theories of recovery. See id. “By requiring a
plaintiff to make an irrevocable election at the time suit is filed between suing the governmental
unit under the Tort Claims Act or proceeding against the employee alone, section 101.106
narrows the issues for trial and reduces delay and duplicative litigation costs.” See id. In sum,
[u]nder the [TTCA]’s election scheme, recovery against an individual employee is
barred and may be sought against the governmental unit only in three instances:
(1) when suit is filed against the governmental unit only; (2) when suit is filed
against both the governmental unit and its employee; or (3) when suit is filed
against an employee whose conduct was within the scope of his or her
employment and the suit could have been brought against the governmental unit.
When suit is filed against the employee, recovery against the governmental unit
regarding the same subject matter is barred unless the governmental unit consents
to suit. Because the decision regarding whom to sue has irrevocable
consequences, a plaintiff must proceed cautiously before filing suit and carefully
consider whether to seek relief from the governmental unit or from the employee
individually. [Internal cites omitted].
Id.
The District filed a motion to dismiss based on Section 101.106(e). The McIntyres
counter that they can maintain their duplicative claims against both the District and the
employees because they “do not seek damages from Mr. Mendoza for any state-law claim.” This
assertion is inconsistent with their pleadings. Their original petition alleged claims for malicious
prosecution and violations of the due process and equal protection clauses of the Texas
Constitution, and sought recovery of both actual and exemplary damages. In their first amended
petition, they once again asserted claims for malicious prosecution. They also pursued claims for
due process and religious liberty violations under the Texas Constitution and once again prayed
for recovery of actual and exemplary damages. Finally, in the third amended petition, they pled
state law claims for malicious prosecution, equal protection, due process, privacy, and religious
liberty, and they sought an award of actual damages in the amount of $800,000, plus any
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exemplary damages. All of the petitions included claims for malicious prosecution and sought
damages. Therefore, the pleadings do not support the argument that they only seek declaratory
and injunctive relief for their state common law tort claims.
Accordingly, we conclude the trial court should have granted the motion to dismiss under
the election of remedies provision articulated in Texas Civil Practice and Remedies Code
101.106. We sustain Issue Five and reverse and render judgment in the District employees’
favor. Because Issue Five is dispositive as to the McIntyres’ state law claims, we need not
address Issues Six, Seven, or Eight.
DISMISSAL OF FEDERAL LAW CLAIMS AGAINST MENDOZA:
QUALIFIED IMMUNITY
In Issues Three and Four, Appellants complain that the trial court erred in denying
summary judgment with respect to the federal law claims asserted against Mendoza. Because
the qualified immunity argument in Issue Four is dispositive, we begin by addressing that issue.
Standard of Review
We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Our review is limited to
consideration of the evidence presented to the trial court. Mathis v. Restoration Builders, Inc.,
231 S.W.3d 47, 52 (Tex.App.--Houston [14th Dist.] 2007, no pet.). When a summary judgment
does not state or specify the grounds upon which it relies, we may affirm the judgment if any of
the grounds presented in the summary judgment motion are meritorious. Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d
537, 556 (Tex.App.--San Antonio 2011, no pet.).
A party moving for traditional summary judgment bears the burden of showing that no
genuine issue of material fact exists and that he is entitled to judgment as a matter of law.
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TEX.R.CIV.P. 166a(c). To determine if the non-movant raises a fact issue, we review the
evidence in the light most favorable to the non-movant, crediting favorable evidence if
reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could
not. See Fielding, 289 S.W.3d at 848, citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005). A defendant who conclusively negates a single essential element of a cause of action or
conclusively establishes an affirmative defense is entitled to summary judgment on that claim.
Frost National Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
Statutory Inquiry
Section 1983 provides in relevant part: “[e]very person who, under color of any statute ...
subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .” 42 U.S.C. § 1983 (1994). “The first inquiry in any § 1983 suit,
therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and
laws.’” Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979).
Initially we note that the deprivation of a right must be caused by the conduct of a person
acting under the color of state law. Here, Mendoza acted pursuant to Section 25.091(b) of the
Texas Education Code which authorized him “to investigate each case of a violation of the
compulsory school attendance requirements referred to [him].” See TEX.EDUC.CODE ANN.
§ 25.091(b)(1). There is no dispute that Mendoza initiated his investigation based on a report
that the McIntyres and their children were in violation of the compulsory attendance laws. Nor
is there any dispute that the McIntyres reside within the District. Therefore, the question is
whether Mendoza is shielded from liability.
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Qualified immunity is a judge-made doctrine. The justification for the doctrine is that
public officials performing discretionary functions should be free to act without fear of
retributive suits for damages except when they should have understood that particular conduct
was unlawful. Davis v. Scherer, 468 U.S. 183, 195, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984).
That awareness depends, in large part, on the extent to which legal rules were clearly established
when the official acted. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d
396 (1982). It follows that an inquiry into the reasonableness of a public official’s conduct must
focus both on what the official did (or failed to do) and on the state of the law at the time of the
alleged act or omission. Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003)(en banc), cert.
denied, 540 U.S. 1109, 124 S. Ct. 1074, 157 L. Ed. 2d 895 (2004); Iacobucci v. Boulter, 193 F.3d
14, 21 (1st Cir. 1999). In the end, the qualified immunity defense should prevail unless the
unlawfulness of the challenged conduct was “apparent” when undertaken. Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).
The test for qualified immunity requires the court to engage in a two part inquiry: (1)
whether a public official’s conduct violated a constitutional or statutory right; and (2) whether
the right was “clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, ---
U.S. ---, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011); see also Morgan v. Swanson, 659 F.3d
359, 371-72 (5th Cir. 2011)(en banc). In determining whether a right was clearly established,
courts look to whether the public official’s actions were objectively reasonable in light of the law
at the time of the challenged conduct. See Morgan, 659 F.3d at 370. The purpose of the
qualified immunity doctrine is to shield government officials not only from personal liability, but
from suit as well, “when their actions could reasonably have been believed to be legal.”
Morgan, 659 F.3d at 370; see also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815,
- 24 -
86 L. Ed. 2d 411 (1985)(“The entitlement is an immunity from suit rather than a mere defense to
liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.”).
Courts have discretion to decide which of the two prongs to address first, in the light of
the particular circumstances. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172
L. Ed. 2d 565 (2009). Reviewing the second prong (objectively unreasonable conduct vel non )
first is often preferable, as it “comports with [the] usual reluctance to decide constitutional
questions unnecessarily.” [Citation omitted]. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
To satisfy the second prong, the McIntyres had the burden of pointing to “controlling authority -
or a robust consensus of persuasive authority - that defines the contours of the right in question
with a high degree of particularity.” [Internal quotation marks and citations omitted]. Morgan,
659 F.3d at 371-72. “Where no controlling authority specifically prohibits a defendant’s
conduct, . . . the law cannot be said to be clearly established. . . . [G]eneralizations and abstract
propositions are not capable of clearly establishing the law.” Id. at 372. While there need not be
a decision directly on point, “existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).
Finally, even where the qualified immunity defense is raised in response to a Section
1983 claim in state court, it must still be evaluated under federal, and not state, law. See Robinett
v. Carlisle, 928 S.W.2d 623, 625 (Tex.App.--Fort Worth 1996, writ denied), cert. denied, 522
U.S. 820, 118 S. Ct. 74, 139 L. Ed. 2d 33 (1997). Although the test for qualified immunity under
state law is whether the officer was acting in good faith, the test under federal law is one of
objective reasonableness:
Although the cases sometimes refer to the doctrine of qualified ‘good faith’
immunity, the test is one of objective legal reasonableness, without regard to
whether the government official involved acted with subjective good faith.
- 25 -
We look to whether a reasonable official could have believed his or her conduct to
be lawful in light of clearly established law and the information possessed by the
official at the time the conduct occurred. Thus, qualified immunity protects ‘all
but the plainly incompetent or those who knowingly violate the law.’
[Citations omitted]. Swint v. City of Wadley, Ala., 5 F.3d 1435, 1441-42 (11th Cir. 1993), cert.
denied, 514 U.S. 1003, 115 S. Ct. 1312, 131 L. Ed. 2d 194 (1995); see City of Lancaster v.
Chambers, 883 S.W.2d 650, 655-56 (Tex. 1994).
“Shock the Conscience” Theory
We now look to whether the McIntyres raised a fact issue regarding Mendoza’s purported
violation of a clearly established federal constitutional right. We begin by addressing
Appellants’ assertion that the McIntyres failed to create a fact issue with respect to their
substantive due process claim. The McIntyres rely on a “shock the conscience” theory, claiming
that Mendoza “committed perjury” by filing criminal charges that “he knew to be untrue,” and
by making up a non-existent criminal offense.
According to the McIntyres, there are “historical examples of this claimed liberty
protection.” As their first “historical example,” of their shock the conscience theory, they rely on
Morris v. Dearborne, 181 F.3d 657 (5th Cir. 1999). In Morris, a teacher deliberately fabricated
sexual abuse charges against a four-year-old student’s father. Morris, 181 F.Ed at 671. The
false charges resulted in a suit by the Texas Department of Protective and Regulatory Services to
permanently terminate the father’s parental rights.7 Id. The court found that the teacher caused
the “destruction of a family based on fabricated evidence.” Id. at 668. Noting the existence of a
“well established constitutional right to family integrity,” the court concluded that the contours
of that right left no doubt that a teacher was not “free to fabricate sexual abuse allegations
7
The fabricated complaint also led to the father’s loss of employment and the placement of the child into foster
care. Morris, 181 F.Ed at 668.
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against her student’s parents.” Id. at 671-72. The court also found that no teacher could have
believed that such conduct was objectively reasonable. Id. at 675. Therefore, the court denied
summary judgment on qualified immunity grounds and left it to the fact-finder to resolve the
causation issue at trial, by determining the extent to which state officials relied on the teacher’s
misrepresentations in deciding to remove the child from her parents’ custody. Id. at 672-73; see
also Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 412 (5th Cir.
2002)(restating the findings in Morris as in other words, an actual violation of the constitutional
right to family integrity, resulting in a tangible loss, constituted a substantive due process
violation, and noting that a key element of Morris and similar cases was that the government
actor “had removed the child from its family home.”).
Similarly, in Cummings v. McIntire, 271 F.3d 341, 346 (1st Cir. 2001), the First Circuit
Court of Appeals held that a police officer’s unprovoked and angry shove of a person who asked
for directions while the officer was directing traffic, resulting in severe spinal injury, did not
shock the conscience because, even if the officer unnecessarily used physical force, he did not do
so maliciously and sadistically for the purpose of causing harm. Cummings, 271 F.3d at 345. In
conducting their analysis, the court looked at the facts underlying other substantive due process
claims: Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000)(a student was
blinded in one eye when a coach intentionally struck him in the head with a metal weight);
Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998)(rape by a police officer in
connection with a car stop); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998)(a fifty-
seven day unlawful detention in the face of repeated requests for release); Hemphill v. Schott,
141 F.3d 412, 419 (2d Cir. 1998)(police officers aiding a third-party in shooting the plaintiff);
Johnson v. Glick, 481 F.2d 1028, 1029-30 (2d Cir. 1973)(an intentional assault by a police
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officer who struck a pretrial detainee twice in the head and threatened to kill him); and Webb v.
McCullough, 828 F.2d 1151, 1159 (6th Cir. 1987)(a principal forcing his way into a room where
a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping
her). See Cummings, 271 F.3d at 346 (stating, “A look at the facts underlying other substantive
due process claims helps place this case into perspective and reinforces our conclusion that [the
defendant’s] conduct was not of constitutional dimension,” and then listing the above summaries
and case citations).
Here, the McIntyres failed to meet their burden as none of the alleged conduct shocks the
conscience. The truancy complaints filed by Mendoza alleged violations of specific sections of
the Education Code. The assistant district attorney in charge of truancy cases testified that the
complaints were sufficient to state criminal offenses. He also testified that the complaints did
not contain any false information.
There is no evidence of any tangible loss or injury to the McIntyres, nor is there any
evidence that Mendoza intended to cause them harm or acted deliberately to injure them. Rather,
the evidence demonstrates that Mendoza possessed at least a good faith belief that he was
complying with his statutory duty to ensure that every child within his jurisdiction attends school
and receives an education. Kinzie v. Dallas County Hospital District, 239 F. Supp. 2d 618, 630
(N.D. Tex. 2003)(noting the requirement to prevail on a shock the conscience theory that “the
conduct evince an intent to cause harm, or show a deliberate act to bring about the specific injury
to the plaintiff”).
Fundamental Liberty Interests
Next, we address the McIntyres assertion that Mendoza violated their fundamental liberty
interests by inquiring about the curriculum they were using in the home, and then by filing the
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truancy complaints when they refused to provide him with such information. In Leeper, the
Supreme Court specifically authorized inquiries into the curriculum of home schools. See
Leeper, 893 S.W.2d at 440. Specifically, the Court affirmed a portion of the trial court’s
judgment which stated in relevant part:
This judgment does not preclude the Texas Education Agency, the Commissioner
of Education or the State Board of Education from suggesting to the public school
attendance officers lawful methods, including but not limited to inquiry
concerning curricula and standardized test scores, in order to ascertain if there is
compliance with the declaration contained in this judgment. However, this
judgment is not to be interpreted as requiring standardized tests in order for there
to be compliance with the interpretation made by the court of [§ 21.033(a)(1) ].
The lawful powers of investigation by public school attendance officers and the
constitutional rights of persons subject to such investigations are not affected by
this judgment.
Id.
Section 25.091(b) of the Education Code vests certain authority in school district
attendance officers. Included is the authority to: (1) investigate each case of a violation of the
compulsory school attendance requirements referred to the attendance officer; (2) monitor school
attendance compliance by each student investigated; (3) make a home visit or otherwise contact
the parent of a student who is believed to be in violation of compulsory school attendance
requirements; and (4) enforce compulsory school attendance requirements by filing truancy
complaints. TEX.EDUC.CODE ANN. § 25.091(b). The McIntyres do not challenge the authority
given to school attendance officers under Section 25.091(b). Instead, they appear to claim a
fundamental right to be free of any state supervision or regulation concerning whatever
education they choose to provide to their children in their home. They provide no support for
such a right, much less sufficient support to show such a right is clearly established.8 Therefore,
8
The United States has long recognized that states have the power to regulate non-public schools:
No question is raised concerning the power of the state reasonably to regulate all schools, to
inspect, supervise and examine them, their teachers and pupils; to require that all children of
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no genuine issue of material fact exists to defeat Mendoza’s qualified immunity defense based on
a violation of the McIntyres’ fundamental liberty interests.
“Class of One” Theory
In the McIntyres’ third amended petition, they allege an equal protection violation based
on discrimination against them “as a Class of One.” A “class of one” theory is limited to cases
where the evidence demonstrates “the existence of a clear standard against which departures,
even for a single plaintiff . . . could be readily assessed,” as opposed to those situations in which
a government official is “exercising discretionary authority based on subjective, individualized
determinations.” Enquist v. Oregon Department of Agriculture, 553 U.S. 591, 602, 128 S. Ct.
2146, 2153, 170 L. Ed. 2d 975 (2008).
Some forms of state action by their very nature involve discretionary decision-making
based on a vast array of subjective, individualized assessments. In such cases the rule that
people should be treated alike, under like circumstances and conditions is not violated when one
person is treated differently from others, because treating like individuals differently is an
accepted consequence of the discretion granted. In such situations, allowing a challenge based
on the arbitrary singling out of a particular person would undermine the very discretion that such
state officials are entrusted to exercise.
Here, the evidence does not suggest that the McIntyres were singled out and treated
differently than other, similarly situated, parents. The Juvenile Case Manager for the Justice of
the Peace Court where the truancy complaints were filed testified that since 2006, she had seen
proper age attend some school, that teachers shall be of good moral character and patriotic
disposition, that certain studies plainly essential to good citizenship must be taught, and that
nothing be taught which is manifestly inimical to the public welfare.
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534, 45 S. Ct. 571, 69 L. Ed.
1070 (1925).
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four or five other cases involving home school situations. According to her, some of the parents
responded to the filing of complaints by providing supplemental information to the court. This
information was then provided to the District Attorney’s Office. All but one of the other home
school cases were dismissed prior to trial. As to the one case that went to trial, the judge allowed
the parents more time to produce documentation demonstrating the validity of their home school.
The parents in that case produced the documentation and the case was dismissed.
The record also demonstrates that Mendoza was acting within his discretionary,
subjective, decision-making authority. Section 25.091(b) of the Texas Education Code
authorized him “to investigate each case of a violation of the compulsory school attendance
requirements referred to” him. See TEX.EDUC.CODE ANN. § 25.091(b). The method and scope
of investigation are are not specified in the Code, nor does the Code specify what specific
evidence is necessary to sufficiently demonstrate compliance with the compulsory school
attendance requirements, or an applicable exemption to such requirements. Consequently, the
investigation and ultimate decision to file truancy complaints were within Mendoza’s discretion.
It is in this respect that Leeper provides guidance. While Leeper precludes using
standardized test scores as a determining factor in deciding whether the McIntyres’ home school
fell within the private or parochial school exemption, nothing in Leeper -- or the Education Code
for that matter -- precludes an attendance officer from requiring the McIntyres to produce
evidence regarding their chosen curriculum. Mendoza’s actions fell within his discretion and
there is no evidence that he exceeded his authority or that the McIntyres were isolated as a “class
of one.” Thus, the McIntyres’ equal protection claims against Mendoza are subject to qualified
immunity.
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“Free Exercise of Religion”
Lastly, we address the portion of the McIntyres’ petition seeking relief in connection with
their “free exercise of religion” under the First Amendment. In Wisconsin v. Yoder, 406 U.S.
205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Old Order Amish and the Conservative Amish
Mennonite Church challenged a Wisconsin compulsory school attendance statute which required
children to attend school until the age of sixteen.9 Yoder, 406 U.S. at 207. The plaintiffs argued
that they had a First Amendment right to withhold their children from any type of institutional
school beyond the eighth grade. Yoder, 406 U.S. at 213. The Supreme Court reiterated that
there “is no doubt as to the power of a State, having a high responsibility for education of its
citizens, to impose reasonable regulations for the control and duration of basic education.” Id.
The court conducted a balancing test and ultimately concluded that, based on the unique facts of
the case, the statute impermissibly infringed on the free exercise of religion without a compelling
state interest. Id. at 234. Yoder is distinguishable because of the unique freedom of religion
issues presented. In fact, the situation was so exceptional that the same treatment has never been
extended to any other individual or religious group. See Combs v. Homer-Center School
District, 540 F.3d 231, 249-52 (3rd Cir. 2008); Mozert v. Hawkins County Board of Education,
9
While the Amish did not object to elementary education because their children must have basic skills to read
the Bible, to be good farmers and citizens, and to deal with non-Amish people, they did object to formal high school
education:
[N]ot only because it places Amish children in an environment hostile to Amish beliefs with increasing
emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and
ways of the peer group, but also because it takes them away from their community, physically and
emotionally, during the crucial and formative adolescent period of life. During this period, the children must
acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the
adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has
learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall
within the category of those best learned through example and ‘doing’ rather than in a classroom.
Yoder, 406 U.S. at 211, 92 S.Ct. at 1531.
- 32 -
827 F.2d 1058, 1067 (6th Cir. 1987)(noting that “Yoder rested on such a singular set of facts that
we do not believe it can be held to announce a general rule”).
No parents have ever prevailed in any reported case on a theory that they have an
absolute constitutional right to educate their children in the home, completely free of any state
supervision, regulation, or requirements. In post-Yoder opinions, the Supreme Court has held
that “a law that is neutral and of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of burdening a particular religious
practice.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217,
2226, 124 L. Ed. 2d 472 (1993); Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 879, 890, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).
The McIntyres have produced no evidence that they are similarly situated to the Old
Order Amish in Yoder. They have failed to raise a fact issue that a sincerely held religious belief
was substantially burdened.
They do not have an “absolute constitutional right to home school.” See Jonathan L. v.
Superior Court, 165 Cal. App. 4th 1074, 81 Cal.Reptr.3d 571, 592 (Cal.App. 2008). Instead, they
have a right to home school their children, but a home school will only meet the private or
parochial exemption from the compulsory school attendance laws if it meets the criteria set out
in Leeper.
Based on the foregoing analysis, we conclude that the McIntyres failed to raise a fact
issue with respect to the violation of a clearly established constitutional right. Because Mendoza
is entitled to qualified immunity, the trial court erred in denying his motion for summary
judgment.10 We sustain Issue Four and reverse and render judgment in favor of Mendoza on this
10
We also note, that with respect to the McIntyres’ malicious prosecution claim under Section 1983, they have
failed to state a cause of action.
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issue. Having determined that the McIntyres’ federal claims against Mendoza should have been
dismissed based on qualified immunity, we need not address the’ absolute immunity claims in
Issue Three.
OBJECTIONS TO THE MCINTYRES’ SUMMARY JUDGMENT EVIDENCE
Finally, in Issue Nine, Appellants maintain that the trial court erred in overruling several
objections to the affidavits of Laura McIntyre. Because we have found in favor of Appellants on
the issues above, we need not address their arguments in Issue Nine. Having sustained Issues
One, Two, Four, and Five, we reverse and render judgment accordingly. The cause is remanded
to the trial court for consideration of the claims remaining consistent with our opinion and
judgment.
August 6, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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