                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 GARY GONZALEZ/IONE GRIMM,                        §
                                                                   No. 08-10-00140-CV
                  Appellant/Cross-Appellee,       §
                                                                      Appeal from the
 v.                                               §
                                                                   171st District Court
 IONE GRIMM/GARY GONZALEZ,                        §
                                                                 of El Paso County, Texas
                 Appellee/Cross-Appellant.        §
                                                                     (TC# 2008-3874)
                                                  §

                                           OPINION

       These appeals arise from the trial court’s grant of Appellee and Cross-Appellant Ione

Grimm’s motion for summary judgment against Appellant and Cross-Appellee Gary Gonzalez. In

two issues on appeal, Gonzalez contends that Grimm failed to prove each element of her immunity

defense and that his controverting evidence created a fact issue. In her sole issue on appeal, Grimm

contends that the trial court erred in failing to award her attorney’s fees and costs.

                                         BACKGROUND

       The summary-judgment evidence shows that Grimm was the principal at the school

Gonzalez’ child attended in the El Paso Independent School District (EPISD). Gonzalez called

Grimm at her school office and then recited Grimm’s correct social security number. Gonzalez then

asked Grimm how it made her feel to know that he had her social security number and then asked,

“[D]o you know what I could do with this?” Grimm reported these events to her immediate

supervisor, Dr. Linda Holman, who advised Grimm that she should report the incident to the EPISD

police department. Grimm thereafter reported the conversation to the EPISD police department.

       EPISD Officer Lionel Calanche subsequently executed a complaint affidavit in which he
recited Gonzalez’ statements to Grimm as constituting the offense of harassment, a criminal offense

with which the El Paso District Attorney then charged Gonzalez. The complaint and information

alleged, in part, that Gonzalez committed the offense of harassment on March 8, 2006, by use of a

telephone in a manner reasonably likely to alarm Grimm, by causing Grimm’s phone to ring

repeatedly, and by making repeated telephone communications to Grimm in a manner likely to

harass, annoy, alarm, abuse, torment, or embarrass her. A capias for Gonzalez’ arrest was executed.

Ultimately, the case was dismissed upon the exercise of the prosecutor’s discretion.

       Gonzalez filed suit against Grimm, a middle-school principal, for malicious criminal

prosecution. Grimm generally denied Gonzalez’ allegations of malicious criminal prosecution and

asserted three affirmative defenses of immunity: (1) that all of her complained-of actions were

incident to or within the scope of her duties of employment as a professional employee of the El Paso

Independent School District and involved the exercise of her judgment or discretion, thereby

rendering her immune from liability under Texas Education Code Section 22.0511; (2) that she had

engaged in the complained-of conduct in the course and scope of her employment as an official and

employee of a governmental subdivision of the State of Texas, was performing discretionary

governmental acts at all pertinent times, had performed those governmental acts in good faith, and

was immune from liability under the common law doctrine of official immunity; and (3) that she was

immune from liability under the Paul D. Coverdell Teacher Protection Act of 2001. TEX . EDUC.

CODE ANN . § 22.0511(a) (West Supp. 2010). Grimm also asserted that she was entitled to recover

attorney’s fees and costs under Section 22.0517 of the Texas Education Code. TEX . EDUC. CODE

ANN . § 22.0517 (West 2006).

       Thereafter, Grimm sought both a final summary judgment based upon her alleged immunity


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under Section 22.0511 as well as the recovery of her attorney’s fees under the Texas Education Code.

TEX . EDUC. CODE ANN . § 22.0511(a) (West Supp. 2010), § 22.0517 (West 2006). Although

Gonzalez opposed the motion, on April 6, 2010, the trial court granted summary judgment in favor

of Grimm but did not award Grimm the attorney’s fees she sought.

                                            DISCUSSION

        Initially, we consider both Gonzalez’ first issue asserting that Grimm failed to prove each

element of her alleged immunity defense and his second issue asserting that his controverting

evidence raised a fact issue, thus barring the trial court’s order granting summary judgment.

                                         Standard of Review

        A defendant who asserts an affirmative defense as the basis for summary judgment is entitled

thereto upon conclusively proving all essential elements of the defense as a matter of law. Enriquez

v. Khouri, 13 S.W.3d 458, 460-61 (Tex. App. – El Paso 2000, no pet.). We review de novo a trial

court’s determination that a party’s right to prevail is established as a matter of law. Rabatin v. Kidd,

281 S.W.3d 558, 560 (Tex. App. – El Paso 2008, no pet.). In reviewing the summary-judgment

motion, we accept as true all evidence favorable to the non-moving party, draw all reasonable

inferences in favor of the non-movant and resolve any doubts in the non-movant’s favor. Enriquez,

13 S.W.3d at 460-61. When a defendant establishes that the asserted affirmative defense bars the

plaintiff’s action, the plaintiff must then produce summary-judgment evidence raising a genuine

issue of material fact in avoidance of the affirmative defense. Enriquez, 13 S.W.3d at 461.

                                         Summary Judgment

        In relevant part, Section 22.0511 of the Texas Education Code provides:

        (a) A professional employee of a school district is not personally liable for any act


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       that is incident to or within the scope of the duties of the employee’s position of
       employment and that involves the exercise of judgment or discretion on the part of
       the employee, except in circumstances in which a professional employee uses
       excessive force in the discipline of students or negligence resulting in bodily injury
       to students.

TEX . EDUC. CODE ANN . § 22.0511(a) (West Supp. 2010). A “professional employee of a school

district” includes a principal. TEX . EDUC. CODE ANN . § 22.051(a)(1) (West 2006). The statutory

immunity provided by the Texas Education Code is in addition to and does not preempt the

common-law doctrines of official and governmental immunity. TEX . EDUC. CODE ANN . § 22.051(b)

(West 2006).

       Grimm, therefore, was entitled to summary judgment only upon conclusively proving as a

matter of law all of the essential elements of Section 22.0511(a): (1) that she was a principal; (2)

that her actions were incident to or within the scope of her duties; and (3) that her duties involved

the exercise of judgment or discretion on her part. TEX . EDUC. CODE ANN . § 22.0511(a) (West Supp.

2010). “Whether one is acting within the scope of his employment depends upon whether the

general act from which injury arose was in furtherance of the employer’s business and for the

accomplishment of the object for which the employee was employed.” Chesshir v. Sharp, 19 S.W.3d

502, 504 (Tex. App. – Amarillo 2000, no pet.), citing Leadon v. Kimbrough Bros. Lumber Co., 484

S.W.2d 567, 569 (Tex. 1972). In determining whether an act is ministerial or discretionary, we look

to the ability of the actor to exercise discretion when performing the act. Chesshir, 19 S.W.3d at

506. Because an official act that is ministerial still requires the actor to use some discretion in the

performance of the act, the distinction between an act that is ministerial and one that is discretionary

is often one of degree. Enriquez, 13 S.W.3d at 462. A ministerial act is not limited to

commandment by statute but may be imposed by orders or other duties. City of Lancaster v.


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Chambers, 883 S.W.2d 650, 654 (Tex. 1994). When a policy prescribes an actor’s duties with a

degree of precision and certainty that leaves nothing to the exercise of the actor’s judgment, then the

actor’s performance of those duties is ministerial. Downing v. Brown, 935 S.W.2d 112, 114 (Tex.

1996). Because ministerial duties do not involve the exercise of judgment or discretion, they do not

cloak the actor with immunity. Cortez v. Weatherford ISD, 925 S.W.2d 144, 148 (Tex. App. – Fort

Worth 1996, no writ).

         In support of her motion for summary judgment, Grimm presented the affidavit of Associate

Superintendent Dr. Linda Holman, Ed.D., Grimm’s own purported affidavit and supporting

documents affixed thereto, and certified copies of records from the El Paso County Clerk’s office

relating to the charge, prosecution, and dismissal of the harassment case against Gonzalez.1

         In conducting our de novo review, we first address Grimm’s purported affidavit that is

attached as Exhibit B to her summary-judgment motion. Exhibit B consists of Grimm’s written

statement entitled “Affidavit of Ione Grimm” to which documents are affixed in support of the

affidavit and the motion for summary judgment.

         An affidavit is a written, factual statement signed by the person making it, sworn before an

officer authorized to administer oaths, and officially certified by the officer under seal of office.

TEX . GOV ’T CODE ANN . § 312.011(1) (West 2005). A document which does not bear the third-party

certification known as a “jurat” is not an affidavit and does not constitute proper summary-judgment

evidence. Medford v. Medford, 68 S.W.3d 242, 246-47 (Tex. App. – Fort Worth 2002, no pet.).

Because, absent a jurat, an intended affidavit does not authenticate any documents attached thereto



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          In support of her request for an award of attorney’s fees, an affidavit from Grimm’s counsel was also filed
with her motion for summary judgment.

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as exhibits, such documents are not entitled to consideration as summary-judgment evidence.

Medford, 68 S.W.3d at 246-47.

         Because Grimm’s written statement as it exists in both the appellate and trial-court records

is unsigned by her and is not officially certified under seal by an officer authorized to administer

oaths, it does not constitute an affidavit, does not authenticate the documents affixed thereto, and

will not support a summary judgment, even though it is unchallenged.2 Medford, 68 S.W.3d at 246-

47; Bernsen v. Live Oak Ins. Agency, Inc., 52 S.W.3d 306, 310 (Tex. App. – Corpus Christi 2001,

no pet.) (“An unsworn statement that purports to be an affidavit will not support a summary

judgment, even if unchallenged.”); Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App. – San

Antonio 1995, writ denied) (without the notarization required by Section 312.011(1) of the Texas

Government Code, a statement is not an affidavit and is not competent summary-judgment proof);

De Los Santos v. Southwest Texas Methodist Hosp., 802 S.W.2d 749, 755 (Tex. App. – San Antonio

1990, no pet.) (a person making an affidavit must swear to and sign the statement before a notary;

because the lack of a properly notarized signature is a substantive and not a purely formal defect, an

unsigned, unsworn statement is not competent summary-judgment proof); compare TEX . R. CIV . P.

166a(f) (defects in the form of affidavit will not be grounds for reversal unless objection is made,

and request to amend is refused). Consequently, in our de novo review of the trial court’s grant of

Grimm’s summary-judgment motion, we will not consider the affidavit or evidence presented in

Exhibit B. Medford, 68 S.W.3d at 246-47.

         Grimm’s remaining summary-judgment evidence includes: (1) the affidavit of Dr. Linda



        2
             Upon inquiry by this Court, the District Clerk confirmed that Grimm’s written statement is deficient in the
trial court’s record.

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Holman, Grimm’s immediate supervisor at the time of Gonzalez’ March 8, 2006, phone call to

Grimm; (2) the complaint and information filed on February 21, 2007, charging Gonzalez with

harassment; (3) Officer Calanche’s complaint affidavit in EPISD case numbers 06-44173 and 06-

44288 wherein Officer Calanche states that he is aware of Gonzalez’ “harassments during the months

of February and March of 2006 by means of EPISD Case reports (sic) 06-44288 and numerous

witness statements,” and specifies within the complaint affidavit that the threatening manner of

Gonzalez’ “social-security number” phone call to Grimm by means of the school’s business

telephone on March 8, 2006, resulted in Grimm feeling harassed, annoyed, alarmed, abused,

tormented, and embarrassed; (4) the executed capias issued for Gonzalez’ arrest for harassment

occurring on March 8, 2006; (5) an order setting Gonzalez’ harassment case for trial on January 15,

2008; (6) the District Attorney’s motion to dismiss the harassment case due to “prosecutorial

discretion” on January 14, 2008; and (7) five witness subpoenas, three of which were returned

unserved and filed with the District Clerk on January 15, 2008, the date on which trial was scheduled

to commence.

       In her affidavit, Dr. Holman stated that in March of 2006, she was the Associate

Superintendent for middle schools within EPISD and was Principal Grimm’s immediate supervisor.

Dr. Holman stated that Principal Grimm was the administrative leader of the middle school, was

responsible for ensuring the safety and security of all students, staff, and other personnel at the

school, and who in the discharge of her duties was required to exercise judgment and discretion in

determining when a situation exists which should be reported to law enforcement officials.

According to Dr. Holman, Grimm’s actions in reporting Gonzalez’ phone call to the school district

police and her cooperation with law enforcement authorities in regard thereto were made in the


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course and scope of her school district employment and necessarily involved the exercise of

Grimm’s judgment and discretion.

       Dr. Holman’s affidavit states that Grimm was employed as the principal at the middle school

within the school district in March 2006, and this undisputed evidence meets the first element of

Grimm’s immunity defense. TEX . EDUC. CODE ANN . § 22.0511(a) (West Supp. 2010); TEX . EDUC.

CODE ANN . § 22.051(a)(1) (West 2006). Gonzalez, however, complains that Grimm failed to

conclusively prove as a matter of law that her report to law enforcement regarding Gonzalez’ phone

call was an act incident to or within the scope of her duties or that the report involved the exercise

of judgment and discretion on Grimm’s part. We agree and find that the legal and factual

conclusions set forth in Dr. Holman’s affidavit are insufficient to conclusively prove that reporting

Gonzalez’ phone call to law enforcement was incidental to or within the scope of her duties as a

principal. Although Grimm received Gonzalez’ phone call while performing her duties as a principal

and made a report to school district police, Dr. Holman’s affidavit simply states a legal and factual

conclusion that Grimm’s actions were within the scope of her employment and fails to discuss how

reporting Gonzalez’ phone call to law enforcement related to and furthered the objectives of

Grimm’s responsibilities as a principal, which Dr. Holman described as “ensuring the safety and

security of all students, staff, and other personnel at the school.” Compare Kobza v. Kutac, 109

S.W.3d 89, 94 (Tex. App. – Austin 2003, pet. denied) (finding that affidavit which discussed scope

of employee’s duties and how employee’s actions were an attempt to further her objectives as a

teacher were non-conclusory).

       Here, the summary-judgment evidence fails to show how Grimm’s report of Gonzalez’

alleged threat to use her social security number, a number which was only significant to Grimm


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individually, was in furtherance of the school district’s business and furthered her objectives as a

principal. Chesshir, 19 S.W.3d at 504. Thus, Grimm did not conclusively prove as a matter of law

that she was entitled to shield herself with the statutory immunity offered under Section 22.0511 of

the Texas Education Code. Because of this deficiency, the evidence was inadequate to support

Grimm’s motion for summary judgment upon the basis of the affirmative defense of immunity under

the Texas Education Code. TEX . EDUC. CODE ANN . § 22.0511(a) (West Supp. 2010); TEX . EDUC.

CODE ANN . § 22.051(a)(1) (West 2006). We sustain Gonzalez’ first issue and need not address his

second issue.

       Because we find the summary-judgment evidence to be deficient and the trial court’s grant

of Grimm’s motion for summary judgment to be erroneous, we do not reach Grimm’s sole issue on

appeal regarding entitlement to attorney’s fees under Section 22.0517 of the Texas Education Code,

which is now moot. TEX . EDUC. CODE ANN . § 22.0517 (West 2006).

                                         CONCLUSION

       The trial court’s order granting summary judgment is reversed and the cause is remanded for

further proceedings.



                                              GUADALUPE RIVERA, Justice
October 26, 2011

Before McClure, C.J., Rivera, J., and Chew, C.J., (Senior)




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