                                            August 6, 2015


                IN THE
    THIRD COURT OF APPEALS
      COMAL COUNTY, TEXAS

             APPELLANT


            Douglas W. Kirk

                   V.


              APPELLEE


 Piano Independent School District, et al

     NO. 03
         013-15-00211-CV


Appellant's Brief on the Merits

Filed by Douglas Kirk, Appellant, pro se

              Douglas Kirk
         1850 Old Sattler Road
        Canyon Lake, TX 78132

             (830)237-7313

          dougkirk@gvtc.com                     MG 062015
                               03
                           NO. 013-15-00211-CV



                                      IN THE
                           THIRD COURT OF APPEALS
                                 AUSTIN, TEXAS



          Douglas W. Kirk V. Piano Independent School District, Et Al


                  Original Proceeding from the 22nd District Court,
                      The Honorable R. Bruce Boyer, Presiding


                           Appellant's Brief on the Merits


Douglas W. Kirk
1850 Old Sattler Road,
Canyon Lake, Texas 78132
Telephone: (830) 2376-7313

Pro Se Litigant




                                        -1-
                   IDENTITY OF PARTIES AND COUNSEL


Pursuant to Texas Rule of Appellate Procedure 38.1(a), appellant presents the

following list of all parties and names and addresses of its counsel:


Appellant/Plaintiff:                   Counsel:


Douglas W. Kirk                        Douglas W. Kirk {Pro Se)
                                        1850 Old Sattler Road
                                       Canyon Lake, TX 78132
                                       Telephone: (830)237-7313

Respondent:

The Honorable R. Bruce Boyer
22th Judicial District Court
New Braunfels, Texas
789 Mam Street
New Braunfels, Texas 12345

Appellee/Defendant:                     Counsel:
Piano Independent School District       Stephen R. Marsh
Nancy Humphrey                          Texas State Bar No. 13019700
Anika Vaughan                           David Klosterboer & Associates
Joseph Parks                            1301 East Collins Boulevard
Courtney J. Washington                  Suite 490
                                        Richardson, TX 75081
                                        Telephone: (214) 570-6292




                                         -2-
                       TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL            2


TABLE OF CONTENTS                          3


TABLE OF AUTHORITIES                        4


STATEMENT OF THE CASE                       5


STATEMENT REGARDING ORAL ARGUMENTS          6


ISSUES PRESENTED                            7


STATEMENT OF FACTS                          8

SUMMARY OF THE ARGUMENT                    12


ARGUMENT.                                  16

PRAYER                                     37

APPENDIX                                   38




                              -3-
                          TABLE OF AUTHORITIES


Cases


Catalina Development, Inc. v. County oj El Paso, 121 s.w.3d 704, 704
(tex.203)                                                                 14,34,35

City ofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002,
Tex.App. - Corpus Christi, 2011                                              13, 20

Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—Corpus Christi 1996...14, 22, 23

Gonzalez v. Ison-Newsome, 68 S. W. 3d 2 (Tex. App. -Dallas 1999)             27, 28

Hinterlongv. Clements, 109 S.W. 3d 611 (Texas App.—Fort Worth 2003)         24-26

JerrellD. INMAN, Sr., Appellant, v. CITY OF KATY and Billy Johnson, in his
Capacityas Assistant ChiefofPolice, Appellees, 900 S. W.2d 871 (1995)           33

Mission Consol. Independent School District v. Garcia, 253 S. W. 3d 653
(Tex. 2008)                                                                     22

Texas Bay Cherry Hill, L.P v. City ofFort Worth, 257 S.W.3d 379 (Tex.App.-
For4 Worth 2008 no pet)                                                         18

Williams v. Conroelndep. Sch. Dist., 809 S.W.2d 954 (Tex.App.-Beaumont 1991,
no writ)                                                                   20

Statutes


Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4. LIABILITY IN
TORT, CHAPTER 73. LIBEL

Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL
LIABILITY, CHAPTER 101. TORT CLAIMS

EDUCATION CODE, TITLE 2. PUBLIC EDUCATION, SUBTITLE D. EDUCA
TORS AND SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS, CH.22

                                      -4-
                       STATEMENT OF THE CASE


Nature of the Case:    Appellant/Plaintiff Douglas Kirk brought a civil

                       defamation cause of action against Appellee/Defendants

                       Piano Independent School District, Nancy Humphrey,

                       Anika Vaughan, Joseph Parks and Courtney J. Washington

                       as a result of libel per se suffered because of actions

                       performed beginning January 28, 2013. Appellant alleges

                       Appellee acted outside governmental duties and functions.

Respondent:            The Honorable R. Bruce Boyer, 22nd District Court,

                       Comal County, Texas.

Respondent's Action:   March 9, 2015, the trial court entered an Order Granting

                       Motion To Dismiss employees Nancy Humphrey, Anita

                       [sic] Vaughn [sic], Joseph Parks and Courtney J.

                       Washington, and, Piano Independent School District.

                       Respondent ordered that Appellant take nothing by way

                       of his suit.




                                      -5-
        STATEMENT REGARDING ORAL ARGUMENTS


Appellant does not seek oral arguments.




                                -6-
                               ISSUES PRESENTED


1. Did the trial court err in dismissing the case under the Texas Tort Claims Act

(Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL

LIABILITY, CHAPTER 101. TORT CLAIMS) when the case was actually filed

under the Texas Defamation Statute (Texas CIVIL PRACTICE AND REMEDIES

CODE, TITLE 4. LIABILITY IN TORT, CHAPTER 73. LIBEL)?


2. Did the trial court err in applying the Texas Tort Claims Act with respect to a

school district in a case that does not involve motor vehicles?



3. Did the trial court err and violate the Texas Tort Claims Act by failing to allow

Appellant to exercise provisions in the statute, to wit, "remedies additional"?


4. Did the trial court err in failing to require Appellee to present a defense of

official immunity to back its claim of immunity?


5. Did the trial court err in failing to recognize Appellant's claim of waiver of

immunity granted by conduct, despite evidence produced by Appellant?


6. Did the trial court fail to consider factual evidence presented by Appellant, on "a

case-by-case basis," to establish waiver-by-conduct?



                                         -7-
                            STATEMENT OF FACTS


      Appellant, Douglas Kirk, had a friend by the name of Melanie Lauren Smith,

who was in an abusive relationship with her husband, Bramlette Jason Smith. On

September 11,2011 and again on December 2,2012, Melanie Lauren Smithreached

outto Douglas Kirk seeking his assistance in getting away from her husband, to which

Douglas Kirk and Rittler Strachan, R.N., responded the first time, and Douglas Kirk

and Michael Wayne Davis responded the second time.

      Bramlette Jason Smith evidently told his sister, Appellee school teacher Anika

Lee Vaughan, about Douglas Kirk's helping his wife. Bramlette Jason Smith is on

record in the court system ofhaving abused his wife beginning on November 3, 2009

and ending on May 26, 2013. Bramlette Jason Smith pled guilty to "Assault Causes

Bodily Injury Family Violence" (Case No. 006-84632-2013, County Court at Law

6, 380th District Court) on February 17, 2014, and was divorced from Melanie

Lauren Smith on August 12, 2014 (Case No.380-56185-2012, 380th District Court,

Collin County, Texas).

      On January 28, 2013, Appellee school teacher Anika Lee Vaughan wrote an

e-mail and sent it to Appellee school principal Courtney J. Washington and Appellee

Director of Security Joseph Parks in which she made a series of false statements of

verifiable fact about Douglas Kirk-which Appellant contends amount to libel per se,


                                        -8-
identifying him as a stalker, a crime for which he has never been charged, tried or

convicted. (On September 22,2011, Bramlette Jason Smith did accuse Douglas Kirk

of stalking after Kirk and nurse Strachan responded to Melanie Lauren Smith's plea

for help the first time, and a police investigation was started in the matter. On October

24, 2011, the case was closed and labeled "no information" by State Attorney's

investigator Adam Reith.)

      Douglas Kirk became aware of the libelous e-mail and an e-mail exchange by

Appellees on July 1,2013 upon the fulfilment of an open records request by the Piano

Independent School District. Douglas Kirk then filed a Level I grievance on July 8,

2013, under Piano Independent School District (PISD) board policy, which was

denied on July 22,2013. In the denial, PISD Chief Human Resources officer Tamria

Griffin indicated that the e-mail was a "private matter" and the district had no

intention of taking any action against Vaughan when an employee acts outside the

scope of his or her employment. In an attempt to clear his name and to set right the

lies that were being written and passed around about him, Douglas Kirk appealed

the result to a Level II Grievance on August 8, 2013. He did this under published

PISD board policy, only to be misled by the PISD attorney Brandy Davis that he

could appear at the Level II hearing via telephone (as had been done in the past), or,

not appear at all. Douglas Kirk made himself available but was not called for the


                                          -9-
hearing and the matter was dismissed by PISD, under the direction ofAppellee Nancy

Humphrey, who was the PISD Board President. (Humphrey did not receive a board

vote to authorize this action.) PISD indicated the grievance was dismissed August

23,2013 because Douglas Kirk was notpresentat the hearing, even though the offer

was made to him through PISD counsel not to bephysicallypresent.

      Exhausting the administrativeremedies, Douglas Kirk then sued the Appellees

in both their official and individual capacities under Texas Statute, Civil Practice and

Remedies Code, Title 4, Chapter 73. LIBEL. Douglas Kirk sued as he did because

PISD stated the e-mail constituted private matters and was outside the duties and

functions ofAnika Lee Vaughan, and yet, the PISD provided resources to publish

and re-republish the original e-mail and to transmit a related e-mail exchange, and

threatened to take police action against Douglas Kirk (based upon the libelous

e-mail). PISD also used public resources to dismiss the grievance without a hearing

and the Board President, Appellee Nancy Humphrey, acted without board authority.

      Upon being sued by Douglas Kirk, the Appellee then denied the allegations

(February 24, 2014) and stated as its number one defense that the "Plaintiff's claim

is barred by governmental immunity." Appellee moved (March 3, 2014) for a

dismissal of the employees under the Texas Tort Claims Act.

      The trial judge did not rule on the original motion for dismissal. The Appellee


                                         -10-
moved for dismissal a second time (October 1, 2014), but in the second dismissal

moved that the employees and PISD be dismissed simultaneously under the TTCA.

The first item in Defendant's Motion to Dismiss under "Introduction" was "The


Defendants have immunity to the claims ofthe Plaintiff," but Appellee, never offered

an affirmative defense to the trial judge to back up official immunity.

        Appellant argued beforethe trialjudge both in writingand orallyApril 4,2014,

August 14, 2014 (oral), December 14, 2014 and March 5, 2015 (oral), that his case

was not filed under the TTCA, citing that the statute only applied to school districts

when motor vehicles are involved and that Appellee's conduct waived any claims of

immunity. Appellee again alleged immunity but again offered no defense and

depended upon the TTCA for protection. Douglas Kirk pointed out that the TTCA

acknowledged that there are "remedies additional" and he made the case that the

PISD waived governmental immunity by their conduct and he cited written evidence

where PISD stated the original e-mail was outside the scope of employment of the

the employee and therefore was of no interest to PISD.

        Upon a second hearing before the trial judge March 5, 2015 (oral), the judge

heard argument from both sides and ultimately dismissed the entire case March 9,

2015.


        Appellant then appealed to the Third Court ofAppeals April 6, 2015.


                                        -11-
                         SUMMARY OF THE ARGUMENT


      It appears as though the Texas Tort Claims Act (TTCA) was created to make

it easier for citizens to sue certain government entities under specifically

enumerated circumstances. In the case of school districts, the statute specifically

says that it applies only in cases involving motor vehicles ("SUBCHAPTER C.

EXCLUSIONS AND EXCEPTIONS. Sec. 101.051. SCHOOL AND JUNIOR


COLLEGE DISTRICTS PARTIALLY EXCLUDED. Except as to motor vehicles,

this chapter does not apply to a school district or to a junior college district.")

      The TTCA acknowledges that there are additional remedies, suggesting that

if citizens can advance another theory regarding suit, then that is permissible and is

not prevented by the TTCA. ("SUBCHAPTER A. GENERAL PROVISIONS

Sec. 101.003. REMEDIES ADDITIONAL. The remedies authorized by this

chapter are in addition to any other legal remedies.")

      The TTCA was never intended to encumber citizens who have legitimate

claims against government entities and can demonstrate that when a government

entity acts outside its duties and functions, a waiver-of-conduct is granted and a

suit may move forward.

      The Appellant sued both individuals and a government entity because there

was movement between individual status and employee status, with individuals


                                          -12-
taking actions that they then used the government entity to further. The

government entity acknowledged in writing that actions were "private". (CR: See

Plaintiffs Exhibit 4 Response to Level I Grievance page 2 at [6] and [7], as

attached to Plaintiffs Response to Defendants' Second Motion To Dismiss.) But

then, the government provided the resources for the actions to take place and used

its own resources to prevent the Appellant from exercising his remedies under

published policy. (CR: See Plaintiffs Exhibit 5 and 6—email exchange with PISD

Attorney Brandy Davis~as attached to Plaintiff's Response to Defendants' Second

Motion To Dismiss.)

      In the present case the Appellee has capitalized on the idea that all things

sounding in tort fall under the TTCA. However, that contradicts the statute itself

and Justice Garza seems to agree. (See City ofCorpus Christi v Eby, Not Reported

in S.W3d, 2011 WL 1437002, Tex.App. - Corpus Christi, 2011).

      The Appellant advanced the argument before the trial court that the

Appellee's actions constituted a waiver-by-conduct of governmental immunity

(CR: See Plaintiff's Response to Defendants' Second Motion To Dismiss page 3-7

at [8] and [9]; [11-13] and page 8 - 14 at [17-21]. Also see RR: Hearing before the

Court, March 5, 2015, Motion To Dismiss page 11 at line 12 through page 13 at

line 7.) The Appellant offered written evidence in his briefs (CR: See Plaintiff's


                                        -13-
Response to Defendants' Second Motion To Dismiss, Plaintiff's Exhibits 1 through

7), which should have been considered by the trial court, (See Catalina Develop

ment, Inc. v. County ofEl Paso, 121 s.w.3d 704, 704 (tex.203), to demonstrate that

a waiver-by-conduct did exist. The Appellee offered no evidence backing up its

claim of official immunity given the facts of the case. Yet the courts have

indicated the entity claiming immunity must make an immunity defense. (See

Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—Corpus Christi 1996).

      However, the trial judge stated, "The Court has reviewed the pleadings,

arguments of counsel, both written and oral, and the authorities cited and

presented." and erred in several respects. (CR: See Letter signed by trial judge the

Honorable R. Bruce Boyer, March 9, 2015 which accompanied signed order to

dismiss.)

      Appellant made these arguments to the Trial Court:

      1. Appellant's suit was filed under Texas Libel law and not the TTCA.

      2. Appellant offered evidence of a waiver-by-conduct and pointed out that

he was exercising "remedies additional."

      3. Appellee offered NO affirmative defense of official immunity for its

actions despite case law to the contrary.

      4. The Trial Court was bound to consider the evidence on a case-by-case


                                        -14-
basis but evidently did not. "Plaintiff urges the Court to consider the set of facts as

enumerated to determine waiver of immunity by conduct." (CR: See Plaintiff's

Response to Defendants' Second Motion To Dismiss page 13 at [20].)

      5. Appellees acted outside their government function and duties and are not

shielded by sovereign immunity or official immunity.

      6. Appellant summarized for the Court: "Plaintiff's cause does not fall under

the Texas Tort Claims Act. This is a defamation suit under Libel Law. The


governmental entity gave permission to the Plaintiff to file suit by virtue of its clear

actions of conduct outside its function and scope of duties. Immunity claims are moot.

The Court need only look at the Appellee's own words to determine that they, them

selves, didn't even consider this matter to be within their governmental function. Yet,

and this is key, public resources were used in transmission, and spread ofthe libelous

statements, and, in an effort to quash Appellant's efforts to have the matter heard

within the system, so as to put to rest the lies that were told about him. What are the

lies and the false statements of fact? They are statements that lead people to believe

that the Appellant is a sexual predator—a stalker—an infamous crime ofserious nature

which carries with it not only social stigma, but serious prison time. Truth as a defense

will fail miserably once the matter goes to trial." (CR: See Plaintiffs Response to

Defendants' Second Motion To Dismiss page 13-14 at [21].)


                                         -15-
                                    ARGUMENT


      1. The trial court erred in dismissing the case under the Texas Tort Claims

Act. Appellant made the argument that his suit was filed under the Libel Statute,

(See CR: Original Petition at page 3, [4.1]; and see CR: Plaintiffs Response to

Defendants' Motion to Dismiss at page 1-2, [2]; and Plaintiff's Response To

Defendants' Second Motion To Dismiss, page 1 [1]), and not the Texas Tort Claims

Act (See CR: Plaintiff's Response to Defendants' Motion to Dismiss at page 2-3,

[9-10]). The Appellant made the argument that governmental immunity was

defeated under a waiver-by-conduct (See CR: Plaintiffs Response to Defendants'

Second Motion To Dismiss page 3-7 at [8] and [9]; [11-13] and page 8 - 14 at [17-

21]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss

page 11 at line 12 through page 13 at line 7.) The Appellant offered written evidence

in his briefs (See CR: Plaintiff's Response to Defendants' Second Motion To

Dismiss, Plaintiffs Exhibits 1 through 7).

      The trial judge wrote "The Court is bound not only by the statutory provisions

of the Texas Tort Liability Act, but also the appellate interpretations of the same."

(See CR: Judge's letter dated March 9, 2015 accompanying Order Granting Motion

To Dismiss.)

      Appellant argues that the trial judge had clear opportunity to apply the TTCA,


                                        -16-
had he fully considered Appellant's arguments regarding "remedies additional"

authorized by the TTCA statute itself and "waiver-by-conduct," (backed up by case

law), and by applying it, he would not have had to dismiss the suit. (The TTCA is

applied by not applying the irrelevant provisions and by applying the relevant one—

"remedies additional.") (See more below.)

       (NOTE: Appellee obviously accepted Appellant's suit under Texas Civil

Practice and Remedies Code Chapter 73 Libel law, which mandates the Plaintiff to

sue the Defendant in his home district. Defendant's did not challenge the venue,

which they could have done had the suit been filed under the TTCA. (See Texas

Civil Practice and Remedies Code Title 2, Subtitle B, Chapter 15, Subchapter A, Sec.

15.002 (a) and Subchapter B, Sec. 15.017, LIBEL, SLANDER, OR INVASION OF

PRIVACY)

       2. The trial court erred in applying the Texas Tort Claims Act with respect to

a school district in a case that does not involve motor vehicles.


       The Texas Tort Clims Act is self-limiting. The statute states: "Except as to

motor vehicles, this chapter does not apply to a school district or to a junior college

district."   ("CIVIL PRACTICE AND REMEDIES CODE. TITLE 5.

GOVERNMENT LI ABILITY CHAPTER 101. TORT CLAIMS. SUBCHAPTER


C. EXCLUSIONS AND EXCEPTIONS: Sec. 101.051. SCHOOL AND JUNIOR



                                        -17-
COLLEGE DISTRICTS PARTIALLY EXCLUDED.) Appellant argued this to the

court. (See CR: Plaintiff's Response to Defendants' Motion to Dismiss at page 3-4

[15]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss

page 11 at line 12 through page 13 at line 7.)

      The Appellee seems to agree in stating, "What the Tort Claims Act does is, is

it sets out a few exceptions to the general rule of sovereign immunity, and it also pro

vides procedures by which a plaintiff can —can pursue those exceptions." (See RR:

Hearing before the Court, March 5, 2015, Motion To Dismiss page 6 at line 25 and

page 7 at lines 1-3, Bret Walton speaking for Appellee.)

      Appellant could not pursue those exceptions as there was no motor vehicle

involved in the case. Therefore, the TTCA did not apply to the facts of the

case and Appellant went to the Libel Law and to the task of breaking immunity

protections by applying the waiver-by-conduct theory based upon the actions of the

Appellees.

      Texas Bay Cherry Hill, L.P. v. City ofFort Worth, 257 S.W.3d 379 (Tex.App.-

For4 Worth 2008 no pet) bolsters Appellant's argument that his suit is not under the

Texas Tort Claims Act, as the Court ofAppeals recognizes statutory limitations to

the TTCA: "The legislature granted a limited waiver of immunity in the Texas Tort

Claims Act, which permits suits to be brought against governmental units in certain


                                        - 18-
narrowly-defined circumstances. Tex. Dep't of Criminal Justice v. Miller, 51 S. W.3d

583, 587 (Tex.2001); see also Dallas County MHMR, 968 S. W. 2d at 341."

      Appellant's suit does not fall under the Texas Tort Claims Act's "narrowly-

defined circumstances." As stated, school districts are excluded except as

pertaining to motor vehicles.

      What this means is that when it comes to breaking governmental immunity,

the TTCA gives the citizens a free pass if a motor vehicle is involved in a case.

What it does not mean is that there are no other ways to defeat governmental

immunity. Appellee made the argument before the trial judge that the TTCA

suggests that school districts have governmental immunity no matter what, with

the only exception of motor vehicles within the TTCA. But this is misleading.

      "There's no waiver provided by the statute to allow Mr. Kirk to sue us, and

the school district should be dismissed on those grounds. Basically, we still have

immunity, is —is the gist of the - of the law." (See RR: Hearing before the

Court, March 5, 2015, Motion To Dismiss page 9 at line 7-11, Bret Walton

speaking for Appellee.)

      Everyone agrees there is no motor vehicle involved in this case. By his own

admission, then, if the trial judge is bound by the statute to apply the Texas Tort

Claims Act only to school district cases in which motor vehicles are involved, then


                                        -19-
the TTCA can't apply to this case and therefore it is a judicial error to dismiss the

cause under the TTCA.


      Further, The Appellee quotes from Williams v. Conroe Indep. Sch. Dist., 809

S.W.2d 954 (Tex.App.-Beaumont 1991, no writ), "An independent school district

is an agency of the state and, while exercising governmental functions, is not

answerable in a suit sounding in tort." (See CR: Reply Brief on Defendants'

Motion To Dismiss, page 2 at [9].) However, Appellant has always maintained that

Appellee acted outside the exercise ofgovernmentalfunctions and therefore is

indeed answerable in a suit sounding in tort.

      3. The trial court erred and violated the Texas Tort Claims Act by failing to

allow Appellant to exercise provisions in the statute, to wit, "remedies additional".

      Applying the Texas Tort Claims Act to all things sounding in tort with respect

to election-of-remedies is self-contradictory, since the TTCA offers "REMEDIES

ADDITIONAL." (See Sec. 101.003. REMEDIES ADDITIONAL. The remedies

authorized by this chapter are in addition to any other legal remedies.") What

remedies is the statute referring to if all things sounding in tort fall under the TTCA?

       In CityofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002,

Tex.App. - Corpus Christi, 2011, Justice Dori Contrearas Garza writes, in a

Concurring Memorandum Opinion, "However, I believe the premise underlying the


                                         -20-
Garcia assumption—that 'the Tort Claims Act is the only, albeit limited, avenue for

common law recovery against the government,' 253 S.W. 3d at 659—is wrong. On

the contrary, it is eminently possible that a governmental unit's immunity to

common-law tort claims may be waived by means other than the limited waiver

provided in the Act."

         Appellant believes Justice Garza is making an insightful statement. With

respect to school districts, the TTCA offers limiting language and, it spells out to

the citizens that there are additional remedies not specifically enumerated by the

statute. The Appeals Court is asked to consider this apparent contradiction. What

is a party supposed to do when the law says it applies only under specific

circumstances, offers other options (other remedies) and then the Courts try to

make the statute fit all situations despite the statutary language?

         The trial judge attempted to do the right thing, but could not because of the

contradiction between the language of the statute and what the Appellee says is the

court interpretation. But maybe neither the statute, nor the courts, intended for the

TTCA to prevent a suit in which the government entity, its employees and

individuals acted outside their duties andfunctions to harm a citizen of the State of

Texas.


         The courts have also found that the TTCA election-of-remedies scheme does


                                          -21-
not apply in all cases. When other remedies exist, the courts have allowed parties

to exercise alternative theories and have not forced dismissal through the TTCA.

      Mission Consol. Independent School District v. Garcia, 253 S. W. 3d 653

(Tex. 2008) was an age discrimination case and relates to the Texas Commission

on Human Rights Act and raised a fundamental question of discrimination law. The

court mentions the Tort Claims Act's election-of-remedies provision but

goes on to find that, "the Act's election scheme does not bar the employees'

recovery under the Texas Commission on Human Rights Act (TCHRA) because

the Legislature has consented to suits against the government under the TCHRA."

While the Appellant did not file under the TCHRA, he did file under an additional

remedy and it is a judicial error to dismiss Appellant's case when the courts have

allowed other causes to move forward using alternative theories, i.e. "remedies

additional."


      Mission demonstrates that the courts do allow "remedies additional" and


that not all cases come under the Texas Tort Claims Act, as the Appellees' suggest.

      The Legislature has given statutory consent to sue, waiving immunity in

specific situations (Texas Tort Claims Act, Texas Commission on Human Rights

Act) and, by clearly defining the tests that must be applied by a defendant in order

to make an immunity claim. Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—


                                       -22-
Corpus Christi 1996). There is no assumption that all governmental entities all the

time, enjoy immunity. Barring a plaintiff without entertaining his theory and

without requiring governmental units to make an immunity defense, if they so

choose, in a required manner, would not lead to justice and is a judicial error.

      4. The trial court erred in failing to require Appellee to present a defense of

official immunity to back its claim of immunity.

      In Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—Corpus Christi 1996)

the Court found that a superintendent who allegedly made public statements

defaming two former school board trustees was NOT protected by sovereign

immunity because he failed to make his immunity case. The higher court affirmed

the trial court's denial of the superintendent's summary judgment. Superintendent

Gallegos asserted his immunity defense based upon the Texas Education Code,

which says:

              "EDUCATION CODE
              TITLE 2. PUBLIC EDUCATION
              SUBTITLE D. EDUCATORS AND SCHOOL DISTRICT
              EMPLOYEES AND VOLUNTEERS


              CHAPTER 22. SCHOOL DISTRICT EMPLOYEES AND
              VOLUNTEERS
              Sec. 22.0511. IMMUNITY FROM LIABILITY, (a) A professional
              employee of a school district is not personally liable for any act that is
              incident to or within the scope of the duties of the employee's position
              of employment and that involves the exercise ofjudgment or
              discretion on the part of the employee, except in circumstances in

                                         -23-
             which a professional employee uses excessive force in the discipline
             of students or negligence resulting in bodily injury to students."

      Unfortunately for superintendent Gallegos, he was not able to adequately

make his defense. The Appellees in the present cause also fall short in making an

immunity defense based solely on the facts of the case because they cannot show

that their documented actions were "incident to or within the scope of the duties of

the employee's position of employment..." Furthermore, they did not even attempt

mount an affirmative defense of official immunity before the trial court.

      Gallegos is a case which spells out the Appellees' burden regarding

immunity. This case also demonstrates that school teachers can be held

accountable for their actions outside their governmental functions and duties.

      In Hinterlong v. Clements, 109 S.W. 3d 611 (Texas App.—Fort Worth 2003),

a student by the name of Matthew T. Hinterlong alleges that he was set up for

expulsion by others, in retaliation for police involvement in some misuse by

students of his home when he was out of town. The straight-A tennis playing

Hinterlong was accused of having alcohol in his vehicle while at school. An

anonymous tip was passed along to authorities, who searched the vehicle and

found a "thimble full" of what "smelled" like alcohol. Hinterlong claimed he was

set up and sought the name of the tipster.

      The Court ofAppeals dealt with a wide variety of issues, one of which was

                                        -24-
whether or not Clements [a teacher in the district] and Arlington ISD had sovereign

immunity against Hinterlong's claims, which included defamation. The Court

found that Clements was not protected and points out that she was not performing

actions incident to or within the scope of her professional duties.

      The following except from the Hinterlong ruling is lengthy, but addresses

several issues involved in the present cause.

              "Additionally, real parties in interest fail to distinguish between
      immunity from suit and immunity from liability, which are two distinct
      principles. See Tex. Dep 't ofTransp. v. Jones, 8 S. W. 3d 636, 638 (Tex.
      1999). While immunity from suit (sovereign immunity) abridged claims at
      common law, immunity from liability (official immunity) is an affirmative
      defense to common law claims that must be pleaded or it is waived. See
      Green Int'l, Inc. v. State, 877 S. W.2d 428,436-37 (Tex.App. -Austin 1994,
      writ dis,n 'd) (holding sovereign immunity is common-law doctrine that
      preceded Texas Constitution so application of doctrine to preclude litigation
      of breach of contract and quantum meruit claims does not violate open
      courts provision); Jones, 8 S.W.3d at 638 (recognizing distinction between
      immunity from liability, which is an affirmative defense that must be
      pleaded or it is waived, and immunity from suit, which is jurisdictional and
      requires complaining party to establish state's consent to be sued); Hayes v.
      Patrick, 71 S.W.3d 516, 521 (Tex.App.-Fort Worth 2002, no pet.) (noting
      official immunity is common law affirmative defense that protects
      government officers and employees from liability for conduct that would
      otherwise be actionable). Absent both pleading and proof of immunity,
      Clements can be held liable under Hinterlong's claims. See Univ. ofHouston
      v. Clark, 38 S.W.3d 578, 580 (Tex.2000) (noting that official immunity is
      affirmative defense that protects government employees from personal
      liability, and that, to be entitled to summary judgment on immunity defense,
      employee must conclusively prove each element of defense); see also Myers
      U. Doe, 52 S.W. 3d 391, 395-96 (Tex.App.-Fort Worth 2001, pet. denied)
      (addressing school district employees' entitlement *628 to immunity if all
                                        -25-
      elements under section 22.051(a) of the Education Code are established); see
      also Tex. Educ. Code Ann. § 22.051 (a) (Vernon 1996) (stating that
      professional school district employees are not personally liable for actions
      incident to or within the scope of duties performed that involve the exercise
      ofjudgment or discretion, unless there is an excessive use of force or
      negligent discipline resulting in bodily injury to students).
             "Clements is also not cloaked with immunity from personal liability
      where her actions are not incident to or within the scope of her professional
      duties or while she is performing duties that are ministerial and, therefore,
      do not involve the exercise ofjudgment or discretion. See Tex. Educ. Code
      Ann. § 22.051; Myers, 52 S. W. 3d at 396; cf. Kassen v. Hatley, 887 S. W. 2d
      4, 11 (Tex. 1994) (holding that government-employed medical personnel are
      not immune from tort liability if the character of the discretion they exercise
      is medical and not governmental). Hinterlong's pleadings allege that
      Clement's acts and omissions involved ministerial duties and that, at certain
      times, Clements acted outside the scope of her employment or official
      duties. Hinterlong has, therefore, pleaded cognizable common law claims
      against Clements, subject to her affirmative defense of immunity.
             "Accordingly, we conclude that Hinterlong has asserted well-
      established common law causes of action against Clements, the tipster, and
      the person or persons who planted the Ozarka water bottle. Regardless of
      whether the trial court later holds that Arlington ISD is sovereignly immune
      from suit, Hinterlong's assertion of these common law causes of action
      against Clements, the tipster, and the person or persons who planted the
      Ozarka water bottle satisfy the open courts predicate of assertion of well-
      established common law causes of action."


      The trial court has erred in not recognizing that Appellant offered

"cognizable common law claims" against Appellees, which defeated any hope of

protection Appellees had under sovereign immunity. Appellant used Appellees'

own documents to demonstrate that the offending actions were outside

governmental duties and functions.

      Furthermore, Appellant offered evidence to the trial judge to show Appellee

                                       -26-
Humphrey also acted outside her duties and function. These acts constituted a

well-established waiver-by-conduct.

      Once the issue of sovereign immunity was defeated with the evidence,

Appellee made no affirmative defense to underscore any claim of official

immunity. The facts of the case show conduct that is outside the duties and

functions of the employees, including the contract of employee Appellee school

teacher Vaughan.

      Because Appellees did not plead an affirmative defense for the official

immunity, Hinterlong shows that it is waived.

      The complaining party, Appellant Douglas Kirk, established the State's

consent to be sued through a waiver-by-conduct, and then Appellee failed to

defend against Appellant's evidence showing the conduct could not enjoy official

immunity protection because it was outside established duties and functions.

      In Gonzalez v. Ison-Newsome, 68 S. W. 3d 2 (Tex. App. --Dallas 1999) five

school district employees allegedly ganged up on one of their own and slandered

her to the press, including slander per se. The trial court rejected a summary

judgment and the appeals Court affirmed the lower court's decision. It seems the

crew on Gonzalez's side appealed to the higher court to reverse the decision based

upon an affirmative defense of immunity as a matter of law. The Appeals Court,
                                        -27-
found however, that Gonzalez did not do that, stating, "...appellants must prove

conclusively all elements of that affirmative defense." The Court cited Swilley V.

Hughes, 488 S. W. 488 S.W.2d 67, 67 (Tex. 1972).

      The Court's words in Gonzalez are important:

             "The education code provides little guidance for determining what
      acts are incident to or within the scope of a professional school employee's
      duties. Likewise, few cases have analyzed this particular element of the
      education code immunity. The scope of employment analysis commonly
      used in cases involving agency law, however, is instructive. In this case,
      Ison-Newsome's claims relate to alleged intentional torts. Under well
      established agency law, the question of whether an intentional tort was
      within an employee's scope of employment can be determined by applying a
      respondeat superior analysis. See Houston Transit Co. v. Felder, 146 Tex.
      428, 208 S.W.2d 880, 881 (1948). Under this analysis, an employee acts
      within his scope of employment if he acts within his general authority, in
      furtherance of the employer's business, and to accomplish an objective for
      which the employee was employed. Mackey v. U.P Enterprises, Inc., 935
      S.W.2d 446, 453 (Tex.App.-Tyler 1996, no writ). 6 We apply this analysis to
      the summary judgment record presented here."

      It should be noted that the Appellees in this present case cannot and have not

demonstrated that the libelous e-mail authored by Vaughan and spread by Parks

and Washington, and which was shut down in the grievance process by Humphrey,

was in "furtherance of the employer's business, and to accomplish an objective for

which the employee was employed." On the contrary, the PISD itself said, through

employee Tamira Griffin, "The District will not take action against an employee or

conduct an investigation related to matters outside the scope of his or her
                                        -28-
employment..." referring to the matter raised by Vaughan and labeled by her as

a "personal issue"—which was her mission to demonize Appellant Douglas Kirk

and brand him as a stalker. That's hardly "in furtherance of the employer's

business..." (See CR: Plaintiff's Response To Defendants' Second Motion To

Dismiss, Plaintiffs Exhibit 4, August 2, 2013, Tamira Griffin Response to Level I

Grievance page 2 at [6] and [7]).

      5. The trial court erred in failing to recognize Appellant's claim of waiver

of immunity granted by conduct (waiver-by-conduct), despite evidence produced

by Appellant.

      Calling a parent a "whore" and a "selfish pussy," and praying for Christmas

that the parent "overdose and burn in hell," and calling the man [the Appellant]

attempting to help that parent get away from a now legally admitted abusive

husband, an "old ugly stalker," was probably not an assigned duty of a Sixth Grade

Language Arts teacher and certainly did not "build a good public image of the

District" as her contract specifies. (See: CR: Plaintiff's Response to Defendants'

Second Motion To Dismiss, Plaintiffs Exhibit 2 Anika Vaughan Contract at [4.1].)

      As Appellee Vaughan stated, it was a "personal issue" she wanted to bring to

the attention of her employer on January 28, 2013, and spread around the District.

She acted individually to create her e-mail relative to the Plaintiff and she used
                                        -29-
publically owned resources spreading her views, which included false statements

of fact. (See CR: Plaintiffs Response To Defendants' Second Motion To Dismiss,

page 3-5 at [9] and see Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan

Email Personal Issue.)

      How do we know Anika Vaughan was acting individually and outside the

scope of her duties?

      First, she herself, says she is, by labeling the first e-mail "personal issue."

      Second, when the Appellant became aware of the e-mail which contained so

many false statements of fact, (several months after January 28, 2013, as a result of

an Open Records Request which was answered by attorney Brandy Davis on July

1, 2013), he employed the Piano Independent School District's own published and

board approved grievance procedure by filing a Level One Grievance on the matter

on July 8, 2013. Associated with the Appellant's Grievance were 21 exhibits which

he submitted for review to demonstrate that statements made by Anika Vaughan on

January 28, 2013, were, in fact, false. (See CR: Plaintiffs Response To

Defendants' Second Motion To Dismiss, attached Plaintiff's Exhibit 1, January 28,

2013, Anika Vaughan Email Personal Issue and Plaintiffs Exhibit 3, January 28,

2013 Anika \ Vaughan Email to PISD.)

      PISD Chief Human Resources Officer Tamira Griffin [not a Defendant]
                                         -30-
reviewed the Level One Grievance filed by the Appellant and issued a denial letter

on August 2, 2013. The letter is the second means by which we know that Anika

Vaughan was acting outside her duties when she wrote and published the false

statements of fact. The letter has two very important admissions on behalf of PISD.

      First, Griffin wrote, "The District has no interest in the private matters

discussed in Ms. Vaughan's email and in your written statement and exhibits."

      Second, Griffin wrote, "The District will not take action against an employee

or conduct an investigation related to matters outside the scope of his or her

employment unless the matters impact the employee's ability to effectively perform

his or her job duties in accordance with District polices and standards."

(See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss, page 6

at [12] and see See Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan Email

Personal Issue. Also see Plaintiffs Exhibit 4, August 2, 2013, Tamira Griffin

Response to Level I Grievance page 2 at [6] and [7].)

      The statements in the Tamira Griffin letter clearly indicate that the

governmental entity itself sees the actions of Anika Vaughan to be outside her

function as a teacher and PISD effectively indicates they are washing their hands

of the matter. But PISD is not free of the matter simply by declaring its lack of

interest. Since the e-mail from Anika Vaughan was received by a variety of PISD
                                        -31-
employees, including Appellees Joseph Parks and Courtney Washington and these

individuals then acted upon the information supplied by Vaughan, and without

questioning its truthfulness, they then acted outside their governmental function as

well. The governmental function of the Director of Security, Joseph Parks, (a

former 19 year veteran police officer who was previously employed by the Piano

Police Department), would have been to investigate the claims made by Anika

Vaughan, before acting against the Appellant. The same holds true of Courtney

Washington, the principal who stated about the Appellant, "I am concerned that he

may try to come to CMS, if what she is saying is accurate. We contact Piano PD

and Safety and Security, as needed." (See CR: Plaintiff's Response To

Defendants' Second Motion To Dismiss, attached Plaintiff's Exhibit 3, January 28,

2013 Anika \ Vaughan Email to PISD at Washington's comment.)

      The Appellant is a Citizen of the United States ofAmerica and of the State

of Texas. As such, he enjoys certain rights and privileges. He has no felony

convictions, has never been arrested, has no criminal record and is a citizen in

good standing. However, Courtney Washington makes it clear that her intention, if

the Appellant comes to her school, is to contact the Director of Security and to

contact the Piano Police. Why would she do that? Does she do that when any

citizen visits her school? Is that a governmental function, to call the police on any
                                        -32-
citizen who arrives on public property which is entrusted to the Board of Trustees

by the citizen-owner taxpayers?

      Appellee Nancy Humphrey also acted outside her government duties and

function and Appellant clearly described to the trial judge her actions and offered

proof of her activity relative to dismissing a related Level II Grievance on the

matter. (See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss,

page 8 - 11 at [17] and Plaintiff's Exhibits 5, 6 and 7 referenced in the argument.)

       In JerrellD. INMAN, Sr., Appellant, v. CITY OF KATY and Billy Johnson,

in his Capacityas Assistant ChiefofPolice, Appellees, 900 S. W.2d 871 (1995),

there is a poignant paragraph: "Our decision here is consistent with our previous

determination that a municipality is immune from an action for libel when the

statements are alleged to have occurred 873*873 during the performance of a

governmental function. City ofDallas v. Moreau, 718 S.W.2d 776, 779 (Tex.A

Corpus Christi Christi 1986, writ refd n.r.e.) In Moreau, a city marshall was fired

following an accusation that he shot his weapon without legal justification. Id. at

778. The letter of termination was circulated and a copy posted on the employee

bulletin board. This court held that the action taken by the marshall's office was in

the performance of a police function, and that the operation of a police

department is a function for which the city is immune from suit. Id. at 779. The
                                        -33-
libel alleged in Moreau is similar to the slander in this case."

      Appellant notes that the VAUGHAN e-mail was not in furtherance of her

duties as a 6th Grade teacher, not even close. But, she did use school district

resources to publish her false statements of fact, as did others. This is the exact

opposite of what happened in both the Inman and Moreau cases.

      6. The trial court erred in failing to consider factual evidence presented by

Appellant, on a case-by-case basis, to establish waiver-by-conduct.

      Waiver-by-conduct of sovereign immunity is a viable legal principle, and, the

courts are expected to make waiver decisions on a case-by-case basis, viewing

carefully the facts of each case.

      In Catalina Development, Inc. v. County ofEl Paso, 121 s.w.3d 704, 704

(Tex.203) where a contractor sued a government entity for shenanigans related to a

contract bid, the Court clearly demonstrated that the Court will evaluate the

waiver-by-conduct exception to sovereign immunity based upon the independent

facts of each case, not as a categorical matter, or bright-line rule.

      While the Court ruled that the County of El Paso was, in fact, protected by

immunity, the case-by-case analysis premise was reinforced. In Catalina, the Court

calls attention to another case in which waiver-by-conduct is addressed. The Court

speaks:

                                         -34-
       "It is undisputed that El Paso County did not expressly waive its immunity
       from suit here. In Federal Sign, we noted that there might be circumstances
       4where the State may waive its immunity by conduct other than simply
       executing a contract,' although under the facts of that case, it was not
       necessary to indicate what those circumstances might be. Federal Sign v.
       Texas S. Univ., 951 S.W.2d 401,408 n. 1 (Tex.1997). Since Federal Sign, we
       have had several occasions to consider circumstances that were urged to
       constitute a waiver by conduct. See Peizel, 77 S.W.3d at 251-52 (county
       withheld money due under a construction contract pursuant to contract's
       liquidated-damages clause); Texas Natural Res. Conservation Comm'n v.
       IT-Davy, 74 S.W.3d 849, 856-57 (Tex.2002) (contractor sought to recover
       cost overruns allowed by contract's equitable-adjustments clause); Gen.
       Servs. Comm'n v. Little-TexInsulation Co., Inc., 39S.W.3d591,595
       (Tex.2001) (contract disputes regarding cost overruns for completed work,
       and to recover for work partially performed under a contract that was
       subsequently terminated). We held that the facts these cases presented did
       not support an equitable waiver-by-conduct of the governmental entities'
       immunity."

       As such, Appellant urged the trial Court to do the same in this present case,

but, it does not appear as though the trial judge took the facts of the case into

consideration before dismissing the case. (See RR: Hearing before the Court,

March 5, 2015, Motion To Dismiss page 9 at line 11 through page 19 through line

14).

       With all due respect to the trial judge, Appellant concludes that errors were

made. Appellant was asked for help by a woman being subjected to domestic

violence and when he assisted her, the husband complained to his sister, who took

it upon herself to make false statements of fact about the Appellant to her


                                         -35-
employer, which she labeled "personal." Without investigating the claims,

individuals then reacted to the libelous material and spread the lies using taxpayer

funded resources within the school district.


      When the Appellant found out, he used the agency policy to attempt to set

the record straight, only to be subjected to an effort to dispose of the matter

without resolution. Appellees indicated the matter was outside the scope of their

duties and function, thereby waiving by conduct any immunity defense (sovereign

or official), and upon being sued, entered a general denial.

      The trial court did not consider the facts of the case to establish waiver-by-

conduct, and did not allow the "remedies additional" provision of the Texas Tort

Claims Act before dismissing the case entirely. Appellant made the case before

the trial judge that he filed suit under the Libel law, not under the TTCA, and that

the government entity gave him permission to sue through conduct.




                                        -36-
                                      PRAYER


      Appellant, Douglas Kirk, respectfully, for the reasons stated above, asks the

Court to reverse the judgment of the trial court and remand the case for trial.




                                        -37-
                                 APPENDIX


Tab 1:   Final Judgment Order by the Trial Court

Tab 2:   Trial Court's Findings of Fact and Conclusions of Law

Tab 3:   Text of Relevant Laws


         Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4.
         LIABILITY IN TORT, CHAPTER 73. LIBEL

         Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5.
         GOVERNMENTAL LIABILITY, CHAPTER 101. TORT CLAIMS

         EDUCATION CODE, TITLE 2. PUBLIC EDUCATION, SUBTITLE
         D. EDUCATORS AND SCHOOL DISTRICT EMPLOYEES AND
         VOLUNTEERS, CH.22



Tab 4:   Piano Independent School District Grievance Policy

         PUBLIC COMPLAINTS GF (LEGAL)

         PUBLIC COMPLAINTS GF (LEGAL)




                                   -38-
                                           Respectfully Submitted,


                                            Bv -Sy£~^
                                            Douglas fork, pro se
                                            Appellant
                                            1850 Old Sattler Road
                                            Canyon Lake, Texas 78132
                                            Telephone: (830)237-7313




                         CERTIFICATE OF SERVICE

Icertify that atrue and correct copy ofthe foregoing pleading or document has been
served on all attorneys ofrecord and any parties who are not represented by an
attorney on      */fy/6c&T, 2015.
      Counsel:
      Stephen R. Marsh
      Texas State Bar No. 13019700
      David Klosterboer & Associates
      1301 East Collins Boulevard
      Suite 490
      Richardson, TX 75081
      Telephone: (214) 570-6292

Via U.S. Mail, Certified Return Receipt Requested, No.f5f<7 9WlO(rtf)Sfti &**f

                                            1<U-
                               Douglas Kirk, pro se




                                       -39-
                                  AFFIDAVIT


State of Texas
County of Comal

BEFORE ME, on this day personally appeared Douglas W. Kirk, known to meto be
a credible person, competent in all respects, to make thisAffidavit, and who, being
by me duly sworn, upon his oath, deposed and stated as follows:

TheAffiant is the prose litigant andAppellant in this cause, who has readthe above
and foregoing Appellant's Briefon the Merits; and that every statement contained in
this Affidavit is within his personal knowledge and true and correct.



                                              /&*
                                      Affiant




Subscribed and sworn to be before me on           /k/£c/£jr~ 3           ,2015 by




                                              Signature of Officer


                                              Notary's
                                                  ry'sltyped or printed name


                                              My commission expires



                                       -40-
                                         CAUSE NO. C-2014-0085-C

DOUGLASW.KIRK                                       §              IN THE DISTRICT COURT
XT
                                                    I
                                                    O
                                                                   274th JUDICIAL DISTRICT
                                                    §
PLANO INDEPENDENT SCHOOL                            §              COMAL COUNTY, TEXAS
DISTRICT.etal                                       8              <L-V1

                             nWT)F.R GRANTING MOTION TO DISMISS

       On this the 5* day of March, 2015, came on to be re-heard, Defendant PLANO
 INDEPENDENT SCHOOL DISTRICT'S Motion to Dismiss its employees, NANCY
 HUMPHREY, ANITA VAUGHN, JOSEPH PARKS and COURTNEY J. WASHINGTON.
 Also beard was PLANO INDEPENDENT SCHOOL DISTRICT'S Motion to Dismiss the
 remaining claims against it. After consideringthe motions and hearing argument ofcounsel, the
 Court is ofthe opinionthat Defendant's Motions to Dismiss shouldbe, in all things, GRANTED,
            n IS THEREFORE, ORDERED, ADJUDGED, and DECREED that Defendant's
     Motions to Dismiss are GRANTED and Plaintiff DOUGLAS W. KIRK shall take nothing by
     way ofhis suit against Defendants PLANO INDEPENDENT SCHOOL DISTRICT, NANCY
     HUMPHREY, ANTTA VAUGHN, JOSEPH PARKS and COURTNEY J. WASHINGTON.
             IT IS FURTHER ORDERED that each party shall bear its own costs ofCourt.
             IT IS FURTHER ORDERED mat any reliefnot granted herein is DENIED.


             SIGNED,this ^2_day"6fMarch, 2015.



                                                         JUDGE PRESIDING


                                                                                       Pagel ofl
      Order Granting Motion to Dismiss
    COUNTIES OF                                                              150N.Seguin, Suite317
     CALDWELL                                                              New Braunfels, Texas 78130
        COMAL                                                                   (830)221-1270
         HAYS                                                                FAX: (830) 608-2030
                                                                          E-Mail: boyexb@co.comaltx.us


                                       R. BRUCE BOYER
                                      22nd DISTRICT JUDGE

March 9,2015


Mr. Douglas Kirk
1850 Old Sattler Road
Canyon Lake, TX 78133

Mr. StephenMarsh
Attorney at Law
1301 E. Collins Blvd., Suite 490
Richardson, TX 75081

Mr. Bret Walton
Attorney at Law
9601 McAllister Frwy, Suite 910
San Antonio, TX 78216

 RE: Cause No. C2014-0085C; Douglas W. Kirk vs. Piano I.S.D., et al.; In the 274th Judicial
        District Court of Comal County, Texas

 Counsel:

 The Court has reviewed the pleadings, arguments of counsel, both written and oral, and the
 authorities cited and presented.
 The Court is bound not only by the statutory provisions ofthe Texas Tort Liability Act, but also the
 appellate interpretations ofthe same.
 As aconsequence, the Defendants' Motion to Dismiss is granted. Acopy ofthe signed Order is
 enclosed. The Order is signed and entered March 9,2015.


     BRUCE BOYER
  22nd DISTRICT JUDGE

  RBB/slm
8/2/2015                                            CML PRACTICE AND REMEDIESCODE CHAPTER 73. UBEL




                                          CIVIL PRACTICE AND REMEDIES                       CODE


                                                 TITLE     4.    LIABILITY         IN    TORT


                                                          CHAPTER 73.        LIBEL


                                         SUBCHAPTER A.              GENERAL        PROVISIONS


             Sec.       73.001.             ELEMENTS OF LIBEL.                 A    libel is a defamation
   expressed in written or other graphic form that tends to blacken
  the memory of the dead or that tends to injure a living person's
   reputation and thereby expose the person to public hatred, contempt
  or ridicule, or financial injury or to impeach any person's
  honesty, integrity, virtue, or reputation or to publish the natural
  defects of anyone and thereby expose the person to public hatred,
   ridicule, or financial injury.

  Acts 1985,               69th Leg.,              ch.    959,    Sec.    1, eff. Sept.              1, 1985.


             Sec. 73.002.                   PRIVILEGED MATTERS.                    (a)     The publication by a
  newspaper or other periodical of a matter covered by this section
   is privileged and is not a ground for a libel action.                                                  This
  privilege does not extend to the republication of a matter if it is
  proved that the matter was republished with actual malice after it
  had ceased to be of public concern.
              (b)       This section applies to:
                       (1)       a fair, true, and impartial account of:
                                (A)        a judicial proceeding, unless the court has
  prohibited publication of a matter because in its judgment the
  interests of justice demand that the matter not be published;
                                (B)        an official proceeding,                      other than a judicial
  proceeding,                to administer the law;
                                (C)       an executive or legislative proceeding (including
  a proceeding of a legislative committee), a proceeding in or before
  a managing board of an educational or eleemosynary institution
  supported from the public revenue, of the governing body of a city
  or town, of a county commissioners court,                                             and of a public school

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 8/2/2015                                               CMLPRACTICE AND REMEDIES CODE CHAPTER 73. LIBEL

    board or a report of or debate and statements made in any of those
    proceedings;                     or
                                    (D)        the proceedings of a public meeting dealing with
    a public purpose, including statements and discussion at the
    meeting or other matters of public concern occurring at the
   meeting;                and
                          (2)        reasonable and fair comment on or criticism of an
    official act of a public official or other matter of public concern
   published for general information.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


               Sec. 73.003.                     MITIGATING FACTORS.                   (a)     To determine the
   extent and source of actual damages and to mitigate exemplary
   damages, the defendant in a libel action may give evidence of the
   following matters if they have been specially pleaded:
            (1) all material facts and circumstances surrounding the
   claim for damages and defenses to the claim;
                         (2)        all facts and circumstances under which the libelous
   publication was made;                                  and
                         (3)        any public apology, correction, or retraction of the
   libelous matter made and published by the defendant.
        (b) To mitigate exemplary damages, the defendant in a libel
   action may give evidence of the intention with which the libelous
   publication was made if the matter has been specially pleaded.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


              Sec. 73.004.                     LIABILITY OF BROADCASTER.                       (a)        A broadcaster is
  not liable in damages for a defamatory statement published or
  uttered in or as a part of a radio or television broadcast by one
  other than the broadcaster unless the complaining party proves that
  the broadcaster failed to exercise due care to prevent the
  publication or utterance of the statement in the broadcast.
              (b)        In this section, "broadcaster" means an owner, licensee,
  or operator of a radio or television station or network of stations
  and the agents and employees of the owner, licensee, or operator.

http://Vww.statutes.legis.state.txus/Docs/CP/htrTVCP.73.htm                                                              2/10
 8/2/2015                                              CML PRACTICE AND REMEDIES CODE CHAPTER 73. UBEL

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


                This section was amended by the 84th Legislature. Pending
                  publication of the current statutes, see S.B. 627, 84th
             Legislature, Regular Session, for amendments affecting this
                                                                    section.


               Sec. 73.005.                    TRUTH A DEFENSE.                The truth of the statement in
   the publication on which an action for libel is based is a defense
   to       the    action.


   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


        Sec. 73.006. OTHER DEFENSES. This chapter does not affect
   the existence of common law, statutory law, or other defenses to
   libel.


   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


              SUBCHAPTER B.                      CORRECTION, CLARIFICATION, OR RETRACTION BY
                                                                  PUBLISHER


              Sec. 73.051.                     SHORT TITLE.             This subchapter may be cited as
   the Defamation Mitigation Act.                                      This subchapter shall be liberally
   construed.


   Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
   eff.       June 14,             2013.



              Sec. 73.052.                     PURPOSE.          The purpose of this subchapter is to
  provide a method for a person who has been defamed by a publication
  or broadcast to mitigate any perceived damage or injury.

  Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
  eff.        June 14,             2013.



             Sec. 73.053.                     DEFINITION.             In this subchapter, "person" means
  an individual, corporation, business trust, estate, trust,
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 8/2/2015                                  CMLPRACTICE AND REMEDIES CODE CHAPTER 73. LIBEL

    partnership, association, joint venture, or other legal or
    commercial entity. The term does not include a government or
    governmental subdivision, agency, or instrumentality.

    Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
    eff.       June 14,         2013.



               Sec. 73.054.             APPLICABILITY.          (a)     This subchapter applies to
    a claim for relief, however characterized, from damages arising out
    of harm to personal reputation caused by the false content of a
   publication.

               (b)        This subchapter applies to all publications, including
   writings, broadcasts, oral communications, electronic
   transmissions, or other forms of transmitting information.

   Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
   eff.        June 14,         2013.



              Sec. 73.055.              REQUEST FOR CORRECTION, CLARIFICATION, OR
   RETRACTION.                 (a)   A person may maintain an action for defamation
   only if:
             (1) the person has made a timely and sufficient request
   for a correction, clarification, or retraction from the defendant;
   or


                        (2)    the defendant has made a correction, clarification,
   or retraction.

        (b) A request for a correction, clarification, or retraction
   is timely if made during the period of limitation for commencement
   of an action for defamation.
        (c) If not later than the 90th day after receiving knowledge
   of the publication, the person does not request a correction,
   clarification, or retraction, the person may not recover exemplary
  damages.
              (d)        A request for a correction, clarification, or retraction
  is sufficient if it:
                        (1)    is served on the publisher;
                        (2)    is made in writing, reasonably identifies the person
  making the request, and is signed by the individual claiming to
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   have been defamed or by the person's authorized attorney or agent;
                          (3)         states with particularity the statement alleged to be
    false and defamatory and, to the extent known, the time and place
    of publication;
                          (4)         alleges the defamatory meaning of the statement; and
                          (5)         specifies the circumstances causing a defamatory
   meaning of the statement if it arises from something other than the
    express language of the publication.
                (e)        A period of limitation for commencement of an action
    under this section is tolled during the period allowed by Sections
    73.056 and 73.057.


   Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
   eff.        June 14,               2013.



               Sec. 73.056.                   DISCLOSURE OF EVIDENCE OF FALSITY.                   (a)   A
   person who has been requested to make a correction, clarification,
   or retraction may ask the person making the request to provide
   reasonably available information regarding the falsity of the
   allegedly defamatory statement not later than the 30th day after
   the date the person receives the request. Any information
   requested under this section must be provided by the person seeking
   the correction, clarification, or retraction not later than the
   30th day after the date the person receives the request.
               (b)         If a correction, clarification, or retraction is not
   made, a person who, without good cause, fails to disclose the
   information requested under Subsection (a) may not recover
   exemplary damages, unless the publication was made with actual
  malice.


   Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
   eff.        June 14,               2013.



       Sec. 73.057. TIMELY AND SUFFICIENT CORRECTION, CLARIFICATION,
  OR RETRACTION.   (a) A correction, clarification, or retraction is
  timely if it is made not later than the 30th day after receipt of:
                         (1)          the request for the correction, clarification, or
  retraction;                    or

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                        (2)       the information requested under Section 73.056(a).
               (b)       A correction, clarification, or retraction is sufficient
   if it is published in the same manner and medium as the original
   publication or, if that is not possible, with a prominence and in a
   manner and medium reasonably likely to reach substantially the same
   audience as the publication complained of and:
            (1)  is publication of an acknowledgment that the
   statement specified as false and defamatory is erroneous;
             (2) is an allegation that the defamatory meaning arises
   from other than the express language of the publication and the
   publisher disclaims an intent to communicate that meaning or to
   assert its truth;

                       (3)        is a statement attributed to another person whom the
   publisher identifies and the publisher disclaims an intent to
   assert the truth of the statement; or
                       (4)        is publication of the requestor's statement of the
   facts, as set forth in a request for correction, clarification, or
   retraction, or a fair summary of the statement, exclusive of any
   portion that is defamatory of another, obscene, or otherwise
   improper for publication.
              (c)       If a request for correction, clarification, or retraction
   has specified two or more statements as false and defamatory, the
   correction, clarification, or retraction may deal with the
   statements individually in any manner provided by Subsection (b).
        (d) Except as provided by Subsection (e), a correction,
  clarification, or retraction is published with a prominence and in
  a manner and medium reasonably likely to reach substantially the
  same audience as the publication complained of if:
            (1) it is published in a later issue, edition, or
  broadcast of the original publication;
           (2) publication is in the next practicable issue,
  edition, or broadcast of the original publication because the
  publication will not be published within the time limits
  established for a timely correction, clarification, or retraction;
  or


            (3) the original publication no longer exists and if the
  correction, clarification, or retraction is published in the
  newspaper with the largest general circulation in the region in
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    which the original publication was distributed.
         (e) If the original publication was on the Internet, a
    correction, clarification, or retraction is published with a
    prominence and in a manner and medium reasonably likely to reach
    substantially the same audience as the publication complained of if
    the publisher appends to the original publication the correction,
    clarification,                      or retraction.

    Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
    eff.        June 14,             2013.



        Sec. 73.058. CHALLENGES TO CORRECTION, CLARIFICATION, OR
   RETRACTION OR TO REQUEST FOR CORRECTION, CLARIFICATION, OR
   RETRACTION. (a) If a defendant in an action under this subchapter
   intends to rely on a timely and sufficient correction,
   clarification, or retraction, the defendant's intention to do so,
   and the correction, clarification, or retraction relied on, must be
   stated in a notice served on the plaintiff on the later of:
            (1)  the 60th day after service of the citation; or
            (2)  the 10th day after the date the correction,
   clarification,                      or retraction is made.
         (b) A correction, clarification, or retraction is timely and
   sufficient unless the plaintiff challenges the timeliness or
   sufficiency not later than the 20th day after the date notice under
   Subsection (a) is served. If a plaintiff challenges the timeliness
   or sufficiency, the plaintiff must state the challenge in a motion
   to declare the correction, clarification, or retraction untimely or
   insufficient served not later than the 30th day after the date
   notice under Subsection (a) is served on the plaintiff or the 30th
   day after the date the correction, clarification, or retraction is
  made,          whichever is later.
       (c) If a defendant intends to challenge the sufficiency or
  timeliness of a request for a correction, clarification, or
  retraction, the defendant must state the challenge in a motion to
  declare the request insufficient or untimely served not later than
  the 60th day after the date of service of the citation.
              (d)         Unless there is a reasonable dispute regarding the actual
  contents of the request for correction, clarification, or
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    retraction, the sufficiency and timeliness of a request for
    correction, clarification, or retraction is a question of law. At
    the earliest appropriate time before trial, the court shall rule,
    as a matter of law, whether the request for correction,
    clarification, or retraction meets the requirements of this
    subchapter.


    Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
    eff.       June 14,             2013.



         Sec. 73.059. EFFECT OF CORRECTION, CLARIFICATION, OR
    RETRACTION.  If a correction, clarification, or retraction is made
   in accordance with this subchapter, regardless of whether the
   person claiming harm made a request, a person may not recover
    exemplary damages unless the publication was made with actual
   malice.


   Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
   eff.        June 14,            2013.



              Sec. 73.060.                    SCOPE OF PROTECTION.                   A timely and sufficient
   correction, clarification, or retraction made by a person
   responsible for a publication constitutes a correction,
   clarification, or retraction made by all persons responsible for
   that publication but does not extend to an entity that republished
   the information.


   Added by Acts 2013, 83rd Leg., R.S., Ch. 950 (H.B. 1759), Sec. 2,
   eff.       June 14,             2013.



        Sec. 73.061. ADMISSIBILITY OF EVIDENCE OF CORRECTION,
   CLARIFICATION, OR RETRACTION.  (a) A request for a correction,
   clarification, or retraction, the contents of the request, and the
  acceptance or refusal of the request are not admissible evidence at
  a    trial.

              (b)        The fact that a correction, clarification, or retraction
  was made and the contents of the correction, clarification, or
  retraction are not admissible in evidence at trial except in
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   mitigation of damages under Section 73.003(a)(3).                                                       If a correction,
   clarification, or retraction is received into evidence, the request
   for the correction,                             clarification,            or retraction may also be
   received into                     evidence.

               (c)         The fact that an offer of a correction,                                        clarification,      or
   retraction was made and the contents of the offer,                                                      and the fact
   that the correction,                               clarification,           or retraction was refused,                 are
   not admissible in evidence at trial.


   Added by Acts 2013,                             83rd Leg.,          R.S.,     Ch.    950    (H.B.       1759),   Sec. 2,
   eff.        June 14,              2013.



               Sec. 73.062.                     ABATEMENT.             (a)     A person against whom a suit is
   pending who does not receive a written request for a correction,
   clarification, or retraction, as required by Section 73.055, may
   file a plea in abatement not later than the 30th day after the date
   the person files an original answer in the court in which the suit
   is pending.
               (b)        A suit is automatically abated, in its entirety, without
   the order of the court, beginning on the 11th day after the date a
   plea in abatement is filed under Subsection (a) if the plea in
   abatement:

                         (1)         is verified and alleges that the person against whom
   the suit is pending did not receive the written request as required
  by Section 73.055;                            and
                         (2)        is not controverted in an affidavit filed by the
  person bringing the claim before the 11th day after the date on
   which the plea in abatement is filed.
               (c)        An abatement under Subsection (b)                                   continues until the
   60th day after the date that the written request is served or a
   later date agreed to by the parties. If a controverting affidavit
   is filed under Subsection (b)(2), a hearing on the plea in
   abatement will take place as soon as practical considering the
  court's            docket.

               (d)        All statutory and judicial deadlines under the Texas
  Rules of Civil Procedure relating to a suit abated under Subsection
  (b), other than those provided in this section, will be stayed
  during the pendency of the abatement period under this section.
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   Added by Acts 2013,                             83rd Leg.,         R.S.,     Ch.    950    (H.B.      1759),   Sec. 2,
   eff.        June 14,             2013.




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                                           CIVIL           PRACTICE-AND REMEDIES             CODE


                                            TITLE          5.   GOVERNMENTAL        LIABILITY


                                                    CHAPTER 101.          TORT CLAIMS


                                           SUBCHAPTER A.             GENERAL PROVISIONS


              Sec. 101.001.                      DEFINITIONS.           In this chapter:
                        (1)        "Emergency service organization" means:
                                 (A)        a volunteer fire department, rescue squad, or an
    emergency medical services provider that is:
                                           (i)       operated by its members; and
                      (ii) exempt from state taxes by being listed as
    an exempt organization under Section 151.310 or 171.083, Tax Code;
   or


                                 (B)        a local emergency management or homeland security
   organization that is:
                                          (i)        formed and operated as a state resource in
   accordance with the statewide homeland security strategy developed
   by the governor under Section 421.002, Government Code; and
                                          (ii)         responsive to the Texas Division of
   Emergency Management in carrying out an all-hazards emergency
   management program under Section 418.112, Government Code.
                       (2)        "Employee" means a person, including an officer or
   agent, who is in the paid service of a governmental unit by
  competent authority, but does not include an independent
  contractor, an agent or employee of an independent contractor, or a
  person who performs tasks the details of which the governmental
  unit does not have the legal right to control.
                       (3)        "Governmental unit" means:
                (A) this state and all the several agencies of
  government that collectively constitute the government of this
  state, including other agencies bearing different designations, and
  all departments, bureaus, boards, commissions, offices, agencies,
  councils, and courts;
                                (B)       a political subdivision of this state, including
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    any city, county, school district, junior college district, levee
    improvement district, drainage district, irrigation district, water
    improvement district, water control and improvement district, water
    control and preservation district, freshwater supply district,
    navigation district, conservation and reclamation district, soil
    conservation district, communication district, public health
    district, and river authority;
                                   (C)        an emergency service organization;                            and
                  (D) any other institution, agency, or organ of
    government the status and authority of which are derived from the
    Constitution of Texas or from laws passed by the legislature under
    the constitution.

                         (4)        "Motor-driven equipment" does not include:
                 (A) equipment used in connection with the operation
   of floodgates or water release equipment by river authorities
   created under the laws of this state;                                          or
                                   (B)       medical equipment, such as iron lungs, located in
   hospitals.
             (5) "Scope of employment" means the performance for a
   governmental unit of the duties of an employee's office or
   employment and includes being in or about the performance of a task
   lawfully assigned to an employee by competent authority.
             (6) "State government" means an agency, board,
   commission, department, or office, other than a district or
   authority created under Article XVI, Section 59, of the Texas
   Constitution,                   that:
                                  (A)        was created by the constitution or a statute of
   this state;                   and
                                  (B)        has statewide jurisdiction.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended
  by Acts 1987, 70th Leg., ch. 693, Sec. 1, eff. June 19, 1987; Acts
   1991, 72nd Leg., ch. 476, Sec. 1, eff. Aug. 26, 1991;                                                    Acts 1995,
  74th Leg., ch. 827, Sec. 1, eff. Aug. 28, 1995;                                                 Acts 1997, 75th
  Leg., ch. 968, Sec. 1, eff. Sept. 1, 1997.
  Amended by:
             Acts 2011, 82nd Leg., R.S., Ch. 1101 (S.B. 1560), Sec. 1, eff.
  June 17,             2011.

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               Sec.        101.002.                SHORT TITLE.             This chapter may be cited as the
   Texas         Tort        Claims           Act.


   Acts 1985,                69th Leg.,                  ch.      959,   Sec.   1, eff.      Sept.      1, 1985.



               Sec.        101.003.                REMEDIES            ADDITIONAL.       The     remedies       authorized

   by this chapter are in addition to any other legal remedies.

   Acts 1985,                 69th Leg.,                 ch.      959,   Sec.   1, eff.      Sept.      1, 1985.


                        SUBCHAPTER B.                      TORT     LIABILITY OF GOVERNMENTAL                  UNITS


               Sec.        101.021.                GOVERNMENTAL LIABILITY.                     A governmental unit in
   the      state          is     liable            for:

                         (1)         property damage, personal injury, and death
   proximately caused by the wrongful act or omission or the
   negligence of an employee acting within his scope of employment if:
                                    (A)        the property damage,                  personal injury,            or death
   arises from the operation or use of a motor-driven vehicle or
  motor-driven equipment;                                        and
                                    (B)        the employee would be personally liable to the
   claimant according to Texas law;                                         and
                         (2)         personal injury and death so caused by a condition or
   use of tangible personal or real property if the governmental unit
   would, were it a private person, be liable to the claimant
   according to Texas law.

  Acts 1985, 69th Leg.,                                 ch. 959, Sec. 1, eff. Sept.                     1, 1985.


              Sec.         101.0211.                  NO LIABILITY FOR JOINT ENTERPRISE.                          (a) The
  common law doctrine of vicarious liability because of participation
   in a joint enterprise does not impose liability for a claim brought
  under this chapter on:
                         (1)         a water district created pursuant to either Sections
  52(b)(1) and (2), Article III, or Section 59, Article XVI, Texas
  Constitution,                     regardless of how created; or
                         (2)         a municipality with respect to the use of a municipal
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   airport for space flight activities as defined by Section lOOA.OOl
   unless the municipality would otherwise be liable under Section
   101.021.

               (b)       This section does not affect a limitation on liability or
   damages provided by this chapter, including a limitation under
   Section 101.023.


   Added by Acts 2001,                           77th Leg., ch. 1423, Sec. 35, eff. June 17,
   2001.

   Amended by:
              Acts 2013,               83rd Leg., R.S.,               Ch. 50 (H.B. 278), Sec. 2, eff.
   September 1, 2013.



              Sec.       101.0215.                LIABILITY OF A MUNICIPALITY.                       (a)   A
   municipality is liable under this chapter for damages arising from
   its governmental functions, which are those functions that are
   enjoined on a municipality by law and are given it by the state as
   part of the state's sovereignty, to be exercised by the
  municipality in the interest of the general public, including but
   not      limited to:

                        (1)        police and fire protection and control;
                        (2)        health and sanitation services;
                        (3)        street construction and design;
                        (4)       bridge construction and maintenance and street
  maintenance;
                        (5)        cemeteries and cemetery care;
                        (6)        garbage and solid waste removal, collection, and
   disposal;
                        (7)       establishment and maintenance of jails;
                        (8)       hospitals;
                        (9)       sanitary and storm sewers;
            (10) airports, including when used for space flight
  activities as defined by Section lOOA.OOl;
                       (11)          waterworks;
                       (12)          repair garages;
                       (13)         parks and zoos;
                       (14)         museums;
                       (15)          libraries and library maintenance;
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                         (16)        civic,          convention centers,               or coliseums;
                         (17)        community, neighborhood, or senior citizen centers;
                         (18)        operation of emergency ambulance service;
                        (19)         dams and reservoirs;
                        (20)         warning signals;
                        (21)         regulation of traffic;
                        (22)         transportation systems;
             (23)  recreational facilities, including but not limited
    to swimming pools, beaches, and marinas;
                        (24)         vehicle and motor driven equipment maintenance;
                        (25)         parking facilities;
                        (26)         tax collection;
                        (27)         firework displays;
                        (28)         building codes and inspection;
                        (29)         zoning, planning, and plat approval;
                        (30)         engineering functions;
                        (31)         maintenance of traffic signals, signs, and hazards;
                        (32)         water and sewer service;
                        (33)         animal control;
                        (34)         community development or urban renewal activities
   undertaken by municipalities and authorized under Chapters 373 and
   374, Local Government Code;
                        (35)         latchkey programs conducted exclusively on a school
   campus under an interlocal agreement with the school district in
   which the school campus is located; and
                        (36)         enforcement of land use restrictions under
   Subchapter E, Chapter 212, Local Government Code.
       (b) This chapter does not apply to the liability of a
  municipality for damages arising from its proprietary functions,
  which are those functions that a municipality may, in its
  discretion, perform in the interest of the inhabitants of the
  municipality, including but not limited to:
                       (1)        the operation and maintenance of a public utility;
                       (2)        amusements owned and operated by the municipality;
  and

                       (3)        any activity that is abnormally dangerous or
  ultrahazardous.

             (c)        The proprietary functions of a municipality do not
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   include those governmental activities listed under Subsection (a).

   Added by Acts 1987,                   70th Leg.,         1st C.S.,          ch.   2,    Sec.      3.02,     eff.
   Sept. 2, 1987.                   Amended by Acts 1997,                75th Leg.,         ch.      152,    Sec.     1,
   eff.        Sept.        1, 1997;       Acts 1999,         76th Leg.,         ch.      1170,      Sec.    2, eff.
   June 18,             1999;       Acts 2001,       77th Leg.,          ch.    1399,      Sec.      1, eff.     June
    16,     2001.
   Amended by:
              Acts 2013,            83rd Leg., R.S.,            Ch.    50   (H.B. 278),           Sec.      1, eff.
   September 1,                  2013.



              Sec. 101.022.              DUTY OWED:           PREMISE AND SPECIAL DEFECTS.                          (a)
   Except as provided in Subsection (c), if a claim arises from a
   premise defect, the governmental unit owes to the claimant only the
   duty that a private person owes to a licensee on private property,
   unless the claimant pays for the use of the premises.
        (b) The limitation of duty in this section does not apply to
   the duty to warn of special defects such as excavations or
   obstructions on highways, roads, or streets or to the duty to warn
   of the absence, condition, or malfunction of traffic signs,
   signals, or warning devices as is required by Section 101.060.
               (c)       If a claim arises from a premise defect on a toll
   highway, road, or street, the governmental unit owes to the
   claimant only the duty that a private person owes to a licensee on
   private property.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
   Amended by:
             Acts 2005, 79th Leg., Ch. 281 (H.B. 2702), Sec. 2.88, eff.
   June 14,            2005.



              Sec. 101.023.              LIMITATION ON AMOUNT OF LIABILITY.                              (a)
  Liability of the state government under this chapter is limited to
  money damages in a maximum amount of $250,000 for each person and
  $500,000 for each single occurrence for bodily injury or death and
  $100,000 for each single occurrence for injury to or destruction of
  property.

              (b)        Except as provided by Subsection (c), liability of a unit
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    of local government under this chapter is limited to money damages
    in a maximum amount of $100,000 for each person and $300,000 for
    each single occurrence for bodily injury or death and $100,000 for
    each single occurrence for injury to or destruction of property.
         (c) Liability of a municipality under this chapter is limited
    to money damages in a maximum amount of $250,000 for each person
    and $500,000 for each single occurrence for bodily injury or death
    and $100,000 for each single occurrence for injury to or
    destruction of property.
        (d) Except as provided by Section 78.001, liability of an
   emergency service organization under this chapter is limited to
   money damages in a maximum amount of $100,000 for each person and
    $300,000 for each single occurrence for bodily injury or death and
    $100,000 for each single occurrence for injury to or destruction of
   property.


   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.                                                      Amended
   by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.03, eff. Sept. 2,
   1987; Acts 1995, 74th Leg., ch. 827, Sec. 2, eff. Aug. 28, 1995;
   Acts 1997, 75th Leg., ch. 968, Sec. 2, eff. Sept. 1, 1997.


              Sec. 101.024.                     EXEMPLARY DAMAGES.                 This chapter does not
   authorize exemplary damages.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


        Sec. 101.025. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO
   SUE.   (a) Sovereign immunity to suit is waived and abolished to
   the extent of liability created by this chapter.
              (b)        A person having a claim under this chapter may sue a
  governmental unit for damages allowed by this chapter.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


             Sec. 101.026.                      INDIVIDUAL'S IMMUNITY PRESERVED.                             To the extent
  an employee has individual immunity from a tort claim for damages,
  it is not affected by this chapter.

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   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


               Sec. 101.027.                      LIABILITY INSURANCE.                 (a)     Each governmental
   unit other than a unit of state government may purchase insurance
   policies protecting the unit and the unit's employees against
   claims under this chapter. A unit of state government may purchase
   such a policy only to the extent that the unit is authorized or
   required to do so under other law.
               (b)        The policies may relinquish to the insurer the right to
   investigate, defend, compromise, and settle any claim under this
   chapter to which the insurance coverage extends.
               (c)        This state or a political subdivision of the state may
   not require an employee to purchase liability insurance as a
   condition of employment if the state or the political subdivision
   is insured by a liability insurance policy.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.                                                  Amended
   by Acts 1999, 76th Leg., ch. 1499, Sec. 1.01, eff. Sept. 1, 1999.


              Sec.        101.028.                WORKERS'      COMPENSATION INSURANCE.                    A
   governmental unit that has workers' compensation insurance or that
   accepts the workers'                              compensation laws of this state is entitled to
   the privileges and immunities granted by the workers' compensation
   laws of this state to private individuals and corporations.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


              Sec.        101.029.                LIABILITY FOR CERTAIN CONDUCT OF STATE PRISON
   INMATES.                (a)        The Department of Criminal Justice is liable for
  property damage, personal injury, and death proximately caused by
  the wrongful act or omission or the negligence of an inmate or
  state jail defendant housed in a facility operated by the
  department if:
                        (1)         the property damage, personal injury, or death arises
  from the operation or use of a motor-driven vehicle or motor-driven
  equipment;
                        (2)         the inmate or defendant would be personally liable to

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   the claimant for the property damage, personal injury, or death
   according to Texas law were the inmate or defendant a private
   person acting in similar circumstances;                                         and
                        (3)        the act, omission, or negligence was committed by the
   inmate or defendant acting in the course and scope of a task or
   activity that:
                                  (A)        the inmate or defendant performed at the request
   of an employee of the department;                                     and
                                  (B)        the inmate or defendant performed under the
   control or supervision of the department.
               (b)       A claimant may not name the inmate or state jail
   defendant whose act or omission gave rise to the claim as a
   codefendant in an action brought under this section.
              (c)        A judgment in an action or a settlement of a claim
   against the Department of Criminal Justice under this section bars
   any action involving the same subject matter by the claimant
   against the inmate or state jail defendant whose act or omission
   gave rise to the claim.                                    A judgment in an action or a settlement of
   a claim against an inmate or state jail defendant bars any action
   involving the same subject matter by the claimant against the
   Department of Criminal Justice under this section.
              (d)        This section does not apply to property damage, personal
   injury, or death sustained by an inmate or state jail defendant.

  Added by Acts 1995, 74th Leg., ch. 321, Sec. 1.108, eff. Sept. 1,
   1995.          Amended by Acts 1999, 76th Leg., ch. 313, Sec. 1, eff. Sept.
   1,      1999.



                                    SUBCHAPTER C.                EXCLUSIONS     AND EXCEPTIONS


              Sec.       101.051.                SCHOOL AND JUNIOR COLLEGE DISTRICTS PARTIALLY
  EXCLUDED.                 Except as to motor vehicles, this chapter does not apply
  to a school district or to a junior college district.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


             Sec. 101.052.                      LEGISLATIVE.           This chapter does not apply to a
  claim based on an act or omission of the legislature or a member of

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  the legislature acting in his official capacity or to the
  legislative functions of a governmental unit.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


            Sec.       101.053.               JUDICIAL.         (a)     This chapter does not apply to
  a claim based on an act or omission of a court of this state or any
  member of a court of this state acting in his official capacity or
  to a judicial function of a governmental unit. "Official capacity"
  means all duties of office and includes administrative decisions or
  actions.
             (b)       This chapter does not apply to a claim based on an act or
  omission of an employee in the execution of a lawful order of any
  court.


  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.                                                 Amended
  by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.04, eff. Sept. 2,
   1987.



             Sec.       101.054.              STATE MILITARY PERSONNEL.                    This chapter does
   not apply to a claim arising from the activities of the state
   military forces when on active duty under the lawful orders of
   competent authority.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


             Sec.       101.055.              CERTAIN GOVERNMENTAL FUNCTIONS.                          This chapter
   does not apply to a claim arising:
                       (1)       in connection with the assessment or collection of
   taxes by a governmental unit;
                       (2)       from the action of an employee while responding to an
   emergency call or reacting to an emergency situation if the action
   is in compliance with the laws and ordinances applicable to
   emergency action, or in the absence of such a law or ordinance, if
   the action is not taken with conscious                                       indifference or reckless
   disregard for the safety of others;                                     or
                       (3)        from the failure to provide or the method of
   providing police or fire protection.
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  Acts 1985,              69th Leg.,             ch.       959,   Sec.    1, eff.       Sept.      1, 1985.        Amended
  by Acts 1987,                   70th Leg.,              1st C.S.,      ch.    2, Sec.      3.05,       eff.    Sept.   2,
  1987;          Acts 1995,              74th Leg.,           ch.    139,      Sec.   1, eff.       Sept.       1, 1995.



            Sec.       101.056.              DISCRETIONARY POWERS.                    This chapter does not
  apply to a claim based on:
                      (1)         the failure of a governmental unit to perform an act
  that the unit is not required by law to perform;                                                 or
                      (2')        a governmental unit's decision not to perform an act
  or on its failure to make a decision on the performance or
  nonperformance of an act if the law leaves the performance or
  nonperformance of the act to the discretion of the governmental
  unit.


  Acts 1985, 69th Leg.,                           ch. 959, Sec. 1, eff. Sept.                      1, 1985.


            Sec.       101.057.              CIVIL         DISOBEDIENCE AND           CERTAIN       INTENTIONAL

  TORTS.           This chapter does not apply to a claim:
                      (1)         based on an injury or death connected with any act or
  omission arising out of civil disobedience, riot, insurrection, or
  rebellion;                 or
                      (2)         arising out of assault, battery, false imprisonment,
  or any other intentional tort,                                  including a tort involving
  disciplinary action by school authorities.

  Acts 1985,              69th Leg.,              ch.      959,   Sec.    1, eff. Sept.            1, 1985.


            Sec.       101.058.              LANDOWNER'S            LIABILITY.          To   the    extent       that

  Chapter 75 limits the liability of a governmental unit under
  circumstances in which the governmental unit would be liable under
  this chapter,                   Chapter 75 controls.

  Added by Acts 1995,                        74th Leg.,           ch.    520,    Sec.    4, eff. Aug.            28,    1995.


            Sec.       101.059.              ATTRACTIVE NUISANCES.                    This chapter does not
  apply to a claim based on the theory of attractive nuisance.


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    Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


               Sec. 101.060.                       TRAFFIC AND ROAD CONTROL DEVICES.                       (a)        This
    chapter does not apply to a claim arising from:
            (1) the failure of a governmental unit initially to place
   a traffic or road sign, signal, or warning device if the failure is
   a result of discretionary action of the governmental unit;
                         (2)         the absence,              condition, or malfunction of a traffic
   or road sign, signal, or warning device unless the absence,
   condition, or malfunction is not corrected by the responsible
   governmental unit within a reasonable time after notice;                                                      or
             (3) the removal or destruction of a traffic or road sign,
   signal, or warning device by a third person unless the governmental
   unit fails to correct the removal or destruction within a
   reasonable time after actual notice.
               (b)        The signs, signals, and warning devices referred to in
   this section are those used in connection with hazards normally
   connected with the use of the roadway.
               (c)        This section does not apply to the duty to warn of
   special defects such as excavations or roadway obstructions.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


              Sec. 101.061.                       TORT COMMITTED BEFORE JANUARY 1, 1970.                          This
   chapter does not apply to a claim based on an act or omission that
   occurred before January 1, 1970.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


              Sec. 101.062.                       9-1-1 EMERGENCY SERVICE.                   (a)     In this section,
  "9-1-1 service" and "public agency" have the meanings assigned
  those terms by Section 771.001, Health and Safety Code.
       (b) This chapter applies to a claim against a public agency
  that arises from an action of an employee of the public agency or a
  volunteer under direction of the public agency and that involves
  providing 9-1-1 service or responding to a 9-1-1 emergency call
  only if the action violates a statute or ordinance applicable to

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  the       action.


  Added by Acts 1987,                             70th Leg.,            ch.    236,    Sec.   2,   eff. Aug.        31,   1987.
  Amended by Acts 1991, 72nd Leg.,                                        ch. 14, Sec. 284(3), eff. Sept. 1,
   1991.



              Sec.        101.063.               MEMBERS          OF PUBLIC          HEALTH   DISTRICT.       A

   governmental unit that is a member of a public health district is
   not liable under this chapter for any conduct of the district's
  personnel or for any condition or use of the district's property.

  Added by Acts 1991,                             72nd Leg.,            ch.    476,    Sec. 2, eff. Aug.            26,   1991.



               This section was amended by the 84th Legislature.                                              Pending
                 publication of the current statutes,                                     see S.B.         450,    84th
             Legislature, Regular Session, for amendments affecting this
                                                                       section.


              Sec.        101.064.               LAND ACQUIRED UNDER FORECLOSURE OF LIEN.                                 (a)
  This section applies only to a municipality that acquires land at a
   sale following the foreclosure of a lien held by the municipality.
               (b)        This chapter does not apply to a claim that:
                        (1)         arises after the date the land was acquired and
  before the date the land is sold, conveyed,                                                 or exchanged by the
  municipality;                       and
                        (2)         arises from:
                                  (A)         the condition of the land;
                                  (B)         a premises defect on the land;                         or
                                  (C)         an action committed by any person,                            other than an
  agent or employee of the municipality,                                              on the land.
              (c)         In this section,                       the term "land" includes any building or
   improvement located on land acquired by a municipality.

  Added by Acts 1995,                             74th Leg.,            ch.    139,    Sec.    5, eff. Sept.         1, 1995;
  Acts 1995,                74th Leg.,                ch.       442,    Sec.    1, eff. Sept.        1, 1995.         Amended
  by Acts 1997, 75th Leg.,                                     ch. 712,       Sec.    2, eff. June 17,            1997.


              Sec.        101.065.               NEGLIGENCE             OF OFF-DUTY       LAW ENFORCEMENT

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   OFFICERS.                 This chapter does not apply to the wrongful act or
   omission or the negligence of an officer commissioned by the
   Department of Public Safety if the officer was not on active duty
   at the time the act, omission, or negligence occurred.                                                         This
   section applies without regard to whether the officer was wearing a
   uniform purchased under Section 411.0078, Government Code, at the
   time the act,                     omission, or negligence occurred.

   Added by Acts 1995,                              74th Leg.,          ch.    738,    Sec. 2, eff.            Sept.   1, 1995.
   Renumbered from Civil Practice and Remedies Code Sec.                                                        101.058 by
   Acts 1997,                75th Leg.,                 ch.      165,   Sec.    31.01(9),        eff.     Sept.    1, 1997.



              Sec.         101.066.                COMPUTER DATE FAILURE.                     This chapter does not
   apply to a claim for property damage caused by a computer date
   failure as described by Section 147.003.

   Added by Acts 1999,                              76th Leg.,          ch.    128,    Sec.    3, eff. May 19,           1999.


              Sec.         101.067.                GRAFFITI REMOVAL.                  This chapter does not apply
  to a claim for property damage caused by the removal of graffiti
   under Section 250.006,                                  Local Government Code.


  Added by Acts 2009,                               81st Leg.,          R.S.,    Ch.    1130     (H.B.     2086),      Sec. 27,
   eff.        September 1,                   2009.



                                                        SUBCHAPTER        D.    PROCEDURES


              Sec. 101.101.                        NOTICE.          (a)       A governmental unit is entitled
  to receive notice of a claim against it under this chapter not
   later than six months after the day that the incident giving rise
  to the claim occurred.                                     The notice must reasonably describe:
                         (1)         the damage or injury claimed;
                         (2)         the time and place of the incident;                                  and
                         (3)         the incident.
               (b)        A city's charter and ordinance provisions requiring
  notice within a charter period permitted by law are ratified and
  approved.
               (c)        The notice requirements provided or ratified and approved

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  by Subsections (a) and (b) do not apply if the governmental unit
  has actual notice that death has occurred,                                            that the claimant has
  received some injury, or that the claimant's property has been
  damaged.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


             Sec.        101.102.                COMMENCEMENT OF SUIT.                   (a)     A suit under this
   chapter shall be brought in state court in the county in which the
   cause of action or a part of the cause of action arises.
              (b)        The pleadings of the suit must name as defendant the
   governmental unit against which liability is to be established.
              (c)        In a suit against the state, citation must be served on
   the secretary of state.                                     In other suits, citation must be served as
   in other civil cases unless no method of service is provided by
   law, in which case service may be on the administrative head of the
   governmental unit being sued.                                       If the administrative head of the
   governmental unit is not available, the court in which the suit is
  pending may authorize service in any manner that affords the
   governmental unit a fair opportunity to answer and defend the suit.

   Acts 1985,               69th Leg., ch. 959, Sec. 1, eff.                               Sept. 1, 1985.           Amended
   by Acts 1987, 70th Leg.,                                    1st C.S., ch. 2, Sec. 3.06, eff. Sept. 2,
   1987.




              Sec.       101.103.                LEGAL REPRESENTATION.                   (a)      The attorney
   general shall defend each action brought under this chapter against
   a governmental unit that has authority and jurisdiction coextensive
   with the geographical limits of this state.                                              The attorney general
  may be fully assisted by counsel provided by an insurance carrier.
              (b)        A governmental unit having an area of jurisdiction
   smaller than the entire state shall employ its own counsel
   according to the organic act under which the unit operates, unless
   the governmental unit has relinquished to an insurance carrier the
   right to defend against the claim.

   Acts 1985,               69th Leg.,                ch.       959,   Sec.   1, eff.      Sept.     1,     1985.



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             Sec.       101.104.              EVIDENCE OF INSURANCE COVERAGE.                             (a)   Neither
  the existence nor the amount of insurance held by a governmental
  unit is admissible in the trial of a suit under this chapter.
              (b)       Neither the existence nor the amount of the insurance is
  subject to discovery.

  Acts 1985,               69th Leg.,              ch.      959,   Sec.    1, eff.      Sept.      1, 1985.


             Sec.       101.105.               SETTLEMENT.           (a)     A cause of action under this
  chapter may be settled and compromised by the governmental unit if,
   in a case involving the state the governor determines,                                                   or if, in
   other cases the governing body of the governmental unit determines,
   that the compromise is in the best interests of the governmental
  unit.

              (b)       Approval is not required if the governmental unit has
   acquired insurance under this chapter.

  Acts 1985,               69th Leg.,              ch.      959,   Sec.    1, eff. Sept.           1, 1985.


             Sec.       101.106.               ELECTION OF REMEDIES.                   (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.

              (b)       The filing of a suit against any employee of a
  governmental unit constitutes an irrevocable election by the
  plaintiff and immediately and forever bars any suit or recovery by
  the plaintiff against the governmental unit regarding the same
  subject matter unless the governmental unit consents.
              (c)       The settlement of a claim arising under this chapter
  shall immediately and forever bar the claimant from any suit
  against or recovery from any employee of the same governmental unit
  regarding the same subject matter.
             (d)        A judgment against an employee of a governmental unit
  shall immediately and forever bar the party obtaining the judgment
  from any suit against or recovery from the governmental unit.
       (e)  If a suit is filed under this chapter against both a
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  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.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended
  by Acts 2003, 78th Leg., ch. 204, Sec. 11.05, eff. Sept. 1, 2003.


              Sec. 101.107.                      PAYMENT AND COLLECTION OF JUDGMENT.                         (a)   A
   judgment in a suit under this chapter may be enforced only in the
   same manner and to the same extent as other judgments against the
   governmental unit are enforceable as provided by law, unless the
   governmental unit has liability or indemnity insurance protection,
   in which case the holder of the judgment may collect the judgment,
   to the extent of the insurer's liability, as provided in the
   insurance or indemnity contract or policy or as otherwise provided
   by law.
        (b) A judgment or a portion of a judgment that is not payable
   by an insurer need not be paid by a governmental unit until the
   first fiscal year following the fiscal year in which the judgment
   becomes           final.
               (c)        If in a fiscal year the aggregate amount of judgments
   under this chapter against a governmental unit that become final,
   excluding the amount payable by an insurer, exceeds one percent of
   the unit's budgeted tax funds for the fiscal year, excluding
   general obligation debt service requirements, the governmental unit
   may pay the judgments in equal annual installments for a period of
   not more than five years. If payments are extended under this
   subsection, the governmental unit shall pay interest on the unpaid
   balance at the rate provided by law.
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   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


               Sec. 101.108.                      AD VALOREM TAXES FOR PAYMENT OF JUDGMENT.                   (a)
   A governmental unit not fully covered by liability insurance may
   levy an ad valorem tax for the payment of any final judgment under
   this chapter.
               (b)        If necessary to pay the amount of a judgment, the ad
   valorem tax rate may exceed any legal tax rate limit applicable to
   the governmental unit except a limit imposed by the constitution.

   Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


              Sec.        101.109.                PAYMENT OF CLAIMS AGAINST CERTAIN UNIVERSITIES.
   A claim under this chapter against a state-supported senior college
   or university is payable only by a direct legislative appropriation
   made to satisfy claims unless insurance has been acquired as
   provided by this chapter.                                   If insurance has been acquired, the
   claimant is entitled to payment to the extent of the coverage as in
   other         cases.


   Acts 1985,                69th Leg.,                ch. 959, Sec. 1, eff.                Sept. 1, 1985.




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                                                            EDUCATION     CODE


                                                   TITLE    2.   PUBLIC   EDUCATION


    SUBTITLE             D.    EDUCATORS              AND   SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS


                    CHAPTER 22.                 SCHOOL      DISTRICT    EMPLOYEES        AND VOLUNTEERS


                               SUBCHAPTER A.                RIGHTS,    DUTIES,     AND BENEFITS


             Sec.        22.001.             SALARY DEDUCTIONS            FOR PROFESSIONAL DUES.             (a)     A
  school district employee is entitled to have an amount deducted
  from the employee's salary for membership fees or dues to a
  professional organization.                                 The employee must:
                       (1)        file with the district a signed written request
  identifying the organization and specifying the number of pay
  periods per year the deductions are to be made;                                             and
                       (2)        inform the district of the total amount of the fees
  and dues for each year or have the organization notify the district
  of       the    amount.

              (b)        The district shall deduct the total amount of the fees or
  dues for a year in equal amounts per pay period for the number of
  periods specified by the employee.                                    The deductions shall be made
  until the employee requests in writing that the deductions be
  discontinued.

              (c)        The school district may charge an administrative fee for
  making the deduction.                                A fee imposed for making a salary deduction
  under this section may not exceed either the actual administrative
  cost of making the deduction or the lowest fee the district charges
  for similar salary deductions,                                 whichever is less.

  Added by Acts 1995,                           74th Leg.,       ch.   260,    Sec.    1, eff. May 30,       1995.



             Sec.        22.002.             ASSIGNMENT,         TRANSFER,       OR PLEDGE OF COMPENSATION,
   (a)       In this section,                        "school employee" means any person employed
  by a school district in an executive,                                    administrative,            or clerical
  capacity or as a superintendent, principal,                                         teacher, or instructor,
              (b)       Any school employee's assignment, pledge,                                   or transfer,    as
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                                              SUBCHAPTER     B.   CIVIL      IMMUNITY


            Sec.        22.051.             DEFINITION;        OTHER IMMUNITY.                (a)    In this
  subchapter,                "professional employee of a school district" includes:
                      (1)        a superintendent, principal, teacher,                              including a
  substitute teacher,                         supervisor,       social worker,           school counselor,
  nurse,         and teacher's aide employed by a school district;
                      (2)        a teacher employed by a company that contracts with a
  school district to provide the teacher's services to the district;
                      (3)        a student in an education preparation program
  participating in a field experience or internship;
                      (4)        a school bus driver certified in accordance with
  standards and qualifications adopted by the Department of Public
  Safety of the State of Texas;
                       (5)       a member of the board of trustees of an independent
  school district;                      and
                       (6)       any other person employed by a school district whose
   employment requires certification and the exercise of discretion.
             (b)        The statutory immunity provided by this subchapter is in
   addition to and does not preempt the common law doctrine of
   official and governmental immunity.

   Added by Acts 2003, 78th Leg., ch. 204, Sec. 15.01, eff. Sept. 1,
   2003;         Acts 2003, 78th Leg., ch. 1197, Sec. 1, eff. Sept. 1, 2003.
   Amended by:
             Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 17, eff.
   June 14,           2013.



             Sec. 22.0511.                     IMMUNITY FROM LIABILITY.                 (a)     A professional
   employee of a school district is not personally liable for any act
   that is incident to or within the scope of the duties of the
   employee's position of employment and that involves the exercise of
   judgment or discretion on the part of the employee, except in
   circumstances in which a professional employee uses excessive force
   in the discipline of students or negligence resulting in bodily
   injury to students.
             (b)        This section does not apply to the operation, use,                                     or
   maintenance of any motor vehicle.

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             (c)        In addition to the immunity provided under this section
  and under other provisions of state law, an individual is entitled
  to any immunity and any other protections afforded under the Paul
  D. Coverdell Teacher Protection Act of 2001                                      (20 U.S.C.        Section 6731
  et seq.), as amended.                              Nothing in this subsection shall be
  construed to limit or abridge any immunity or protection afforded
  an individual under state law.                                  For purposes of this subsection,
   "individual" includes a person who provides services to private
  schools,            to the extent provided by federal law.
             (d)        A school district may not by policy,                            contract, or
  administrative                   directive:

                       (1)       require a district employee to waive immunity from
   liability for an act for which the employee is immune from
   liability under this section; or
                       (2)       require a district employee who acts in good faith to
  pay for or replace property belonging to a student or other person
   that is or was in the possession of the employee because of an act
   that is incident to or within the scope of the duties of the
   employee's position of employment.

  Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
   Renumbered from Sec. 22.051 and amended by Acts 2003, 78th Leg.,
   ch. 204, Sec. 15.01, eff. Sept. 1, 2003;                                     Acts 2003,        78th Leg., ch.
   1197,       Sec.        1, eff.           Sept.         1, 2003.
   Amended by:
             Acts 2007,               80th Leg., R.S., Ch. 116 (S.B. 370), Sec.                           1, eff.
   May 17,          2007.



             Sec.       22.0512.               IMMUNITY FROM          DISCIPLINARY      PROCEEDINGS        FOR

   PROFESSIONAL EMPLOYEES.                                 (a)   A professional employee of a school
   district may not be subject to disciplinary proceedings for the
   employee's use of physical force against a student to the extent
   justified under Section 9.62,                                 Penal Code.
             (b)        In this section,                     "disciplinary proceeding" means:
                       (1)        an action brought by the school district employing a
   professional employee of a school district to discharge or suspend
   the employee or terminate or not renew the employee's term
   contract;               or

http^AwAv.statutesJegis.state.tKus/Docs/ED/htrrVED.2Zhtm                                                            12/38
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                                                                                    (LEGAL)


UNITED STATES        The District shall take no action abridging the freedom of speech or
CONSTITUTION         the right of the people to petition the Board for redress of grievanc
                     es. U.S. Const Amend. I, XIV

                     The Board may confine its meetings to specified subject matter and
                     may hold nonpublic sessions to transact business. But when the
                     Board sits in public meetings to conduct public business and hear
                     the views of citizens, it may not discriminate between speakers on
                     the basis of the content of their speech or the message it conveys.
                     Rosenbenaer v. Rector & Visitors of Univ. of Virginia. 515 U.S. 819,
                     828 (1995): Citv of Madison v. Wis. Emp. Rel. Comm'n. 429 U.S.
                     167, 174 (1976): Pickering v. Bd. of Educ. 391 U.S. 563, 568
                     (1968)

TEXAS CONSTITUTION   Citizens shall have the right, in a peaceable manner, to assemble
                     together for their common good and to apply to those invested with
                     the powers of government for redress of grievances or other pur
                     poses, by petition, address, or remonstrance. Tex. Const. Art. I,
                     Sec. 27

  RESPONSE TO        There is no requirement that the Board negotiate or even respond
  COMPLAINTS         to complaints. However, the Board must stop, look, and listen and
                     must consider the petition, address, or remonstrance. Professional
                     Association of College Educators v. El Paso County Community
                     (College! District. 678 S.W.2d 94 (Tex. App.—El Paso 1984, writ
                     ref'dn.r.e.)
FEDERAL LAWS         A district that receives federal financial assistance, directly or indi
  SECTION 504
                     rectly, and that employs fifteen or more persons shall adopt griev
                     ance procedures that incorporate appropriate due process stand
                     ards and that provide for the prompt and equitable resolution of
                     complaints alleging any action prohibited by Section 504 of the
                     Rehabilitation Act of 1973. 29 U.S.C. 794; 34 CFR 104.7(b)
  AMERICANS WITH     A district that employs 50 or more persons shall adopt and publish
  DISABILITIES ACT   grievance procedures providing for prompt and equitable resolution
                     of complaints alleging any action that would be prohibited by the
                     Code of Federal Regulations, Title 28, Part 35 (Americans with
                     Disabilities Act regulations). 28 CFR 35.107
CLOSED MEETING       The Board may conduct a closed meeting on a public complaint to
                     the extent required or provided by law. [See BEC]
RECORD OF            An appeal of the Board's decision to the Commissioner of Educa
PROCEEDINGS          tion shall be decided based on a review of the record developed at
                     the District level. "Record" includes, at a minimum, an audible
                     electronic recording or written transcript of all oral testimony or ar
                     gument. Education Code 7.057(c), (f)


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                     It isthe District's responsibility to make and preserve the records of
                     the proceedings before the Board. If the District fails to create and
                     preserve the record without good cause, all substantial evidence
                     issues that require missing portions ofthe record for resolution
                     shall be deemed against the District. The record shall include:
                     1.    Atape recording ora transcript ofthe hearing at the local lev
                           el. Ifa tape recording is used:
                           a.   The tape recording must be complete, audible, and
                                clear; and
                           b.   Each speaker must be clearly identified.
                     2.    All evidence admitted;

                     3.    All offers of proof;
                     4.    All written pleadings, motions, and intermediate rulings;
                     5.    Adescription of matters officially noticed;
                     6.    If applicable, the decision ofthe hearing examiner;
                     7.    Atape recording or transcript of the oral argument before the
                           Board; and

                      8.   The decision of the Board.

                      19 TAC 157.1073(d)

 DISRUPTION           It is a criminal offense for a person, with intent to prevent or disrupt
                      a lawful meeting, to substantially obstruct or interfere with the ordi
                      nary conduct of a meeting by physical action or verbal utterance
                      and thereby curtail the exercise of others' First Amendment rights.
                      Penal Code 42.05; Morehead v. State. 807S.W. 2d577 (Tex. Cr.
                      App. 1991)

                      Note:      Public complaints regarding instructional and library ma
                                 terials are addressed at EFAand complaints against
                                 peace officers are addressed at CKE.




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PUBLIC COMPLAINTS                                                                         GF
                                                                                    (LOCAL)


PROCEDURES           Board members understand that it is reasonable and expected that
                     individuals from time to time will have complaints concerning
                     school matters. In these instances complainants shall use the pro
                     cedures provided in this policy.
COMPLAINTS           In this policy, the terms "complaint" and "grievance" shall have the
                     same meaning.
  OTHER COMPLAINT    Complaints by members of the public shall be filed in accordance
  PROCESSES          with this policy, except as required by the policies listed below.
                     Some of these policies require appeals to be submitted in accord
                     ance with GF after the relevant complaint process:
                     1.   Complaints concerning instructional materials shall be filed in
                          accordance with EFA.

                     2.   Complaints concerning a commissioned peace officer who is
                          an employee of the District shall be filed in accordance with
                          CKE.

                     3.   Complaints concerning decisions on residency shall be filed in
                          accordance with FD.

GUIDING PRINCIPLES   The Board encourages the publicto discuss concerns with an ap
  INFORMAL
                     propriate administrator who has the authority to address the con
  PROCESS
                     cerns. Concerns should be expressed as soon as possible to al
                     low early resolution at the lowest possible administrative level.
                     Informal resolution shall be encouraged but shall not extend any
                     deadlines in this policy, except by mutual written consent.
  FORMAL PROCESS     An individual may initiate the formal process described below by
                     timely filing a written complaint.
                     Even after initiating the formal complaint process, individuals are
                     encouraged to seek informal resolution of their concerns. An indi
                     vidual whose concerns are resolved may withdraw a formal com
                     plaint at any time.
                     The process described in this policy shall not be construed to cre
                     ate new or additional rights beyond those granted by law or Board
                     policy, nor to require a full evidentiary hearing or "mini-trial" at any
                     level.

FREEDOM FROM         Neither the Board nor any District employee shall unlawfully retali
RETALIATION          ate against any individual for bringing a concern or complaint.
GENERAL              Written complaints and appeal notices may be filed by hand-
PROVISIONS           delivery, by electronic communication, including e-mail and fax, or
  FILING             by U.S. Mail. Hand-delivered filings shall be timely filed if received
                     by the appropriate administrator or designee by the close of busi-

DATE ISSUED: 4/28/2015                                                                  1 of 6
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                                                                                   (LOCAL)


                     ness on the deadline. Filings submitted by electronic communica
                     tion shall be timely filed ifthey are received by the close of busi
                     ness on the deadline, as indicated by the date/time shown on the
                     electronic communication marked by the District's technology re
                     sources/electronic communications system. [See CQ] Mail filings
                     shall be timely filed ifthey are postmarked by U.S. Mail on or be
                     fore the deadline and received by the appropriate administrator or
                     designated representative no more than three days after the dead
                     line.

  SCHEDULING         The District shall make reasonable attempts to schedule confer
  CONFERENCES        ences at a mutually agreeable time. Ifthe individual fails to appear
                     at a scheduled conference, the District may hold the conference
                      and issue a decision in the individual's absence.

  RESPONSE            At Levels One and Two, "response" shall mean a written communi
                      cation to the individual from the appropriate administrator. Re
                      sponses may be hand-delivered, sent byelectronic communication
                      to the individual's e-mail address of record, or sent by U.S. Mail to
                      the individual's mailing address of record. Mailed responses shall
                      be timely ifthey are postmarked by U.S. Mail on or before the
                      deadline. Filings submitted by electronic communication shall be
                      timely filed ifthey are received bythe close of business onthe
                      deadline, as indicated by the date/time shown on the electronic
                      communication marked by the District's technology resources/
                      electronic communications system. [See CQ]
   DAYS               "Days" shall mean District business days. In calculating time lines
                      under this policy, the day a document is filed is "day zero." The
                      following business day is "day one."
   REPRESENTATIVE     "Representative" shall mean any person who or organization that is
                      designated by an individual to represent the individual in the com
                      plaint process.
                      The individual may designate a representative through written no
                      ticeto the District at any level of this process. If the individual des
                      ignates a representative with fewer than three days' notice to the
                      District before a scheduled conference or hearing, the District may
                      reschedule the conference or hearing to a later date, if desired, in
                      order to include the District's counsel. The District may be repre
                      sented by counsel at any level of the process.
   CONSOLIDATING      Complaints arising outof an event or a series of related events
   COMPLAINTS         shall be addressed in one complaint. An individual shall not file
                      separate or serial complaints arising from any event or series of
                      events that have been or could have been addressed in a previous
                      complaint.


 DATE ISSUED: 4/28/2015                                                                 2 of 6
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PUBLIC COMPLAINTS                                                                           GF
                                                                                   (LOCAL)


  UNTIMELY FILINGS   All time limits shall be strictly followed unless modified by mutual
                     written consent.

                     If a written complaint or appeal notice is not timely filed, the com
                     plaint may be dismissed, on written notice to the individual, at any
                     point during the complaint process. The individual may appeal the
                     dismissal by seeking review in writing within ten days from the date
                     of the written dismissal notice, starting at the level at which the
                     complaint was dismissed. Such appeal shall be limited to the issue
                     of timeliness.

  COSTS INCURRED     Each party shall pay its own costs incurred in the course of the
                     complaint.
  WRITTEN            Complaints and appeals under this policy shall be submitted in writ
  COMPLAINT AND      ing.
  APPEAL
                     Copies of any documents that support the complaint should be at
                     tached to the written complaint. If the individual does not have
                     copies of these documents, they may be presented at the Level
                     One conference. After the Level One conference, no new docu
                     ments may be submitted by the individual unless the individual did
                     not know the documents existed before the Level One conference.

                     A written complaint or appeal that is incomplete in any material as
                     pect may be dismissed but may be refiled with all the required in
                     formation if the refiling is within the designated time for filing.
LEVEL ONE            Complaints must be filed:
                     1.     Within 15 days of the date the individual first knew, or with
                            reasonable diligence should have known, of the decision or
                            action giving rise to the complaint or grievance; and
                     2.     With the lowest level administrator who has the authority to
                            remedy the alleged problem.
                            Ifthe only administrator who has authority to remedy the al
                            leged problem is the Superintendent or designee, the com
                            plaint may begin at Level Two following the procedure, includ
                            ing deadlines, for filing the written complaint at Level One.
                     Ifthe complaint is not filed with the appropriate administrator, the
                     receiving administrator must note the date and time the written
                     complaint was received and immediately forward the written com
                     plaint to the appropriate administrator.
                     The appropriate administrator shall investigate as necessary and
                     schedule a conference with the individual within ten days after re
                     ceipt of the written complaint. The administrator may set reasona
                     ble time limits for the conference.

DATE ISSUED: 4/28/2015                                                                 3 of 6
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                                                                                  (LOCAL)


                     Absent extenuating circumstances, the administrator shall provide
                     the individual a written response within ten days following the con
                     ference. In reaching a decision, the administrator may consider
                     information provided at the Level One conference and any other
                     relevant documents or information the administrator believes will
                     help resolve the complaint.
LEVEL TWO            If the individual did not receive the relief requested at Level One or
                     if the time for a response has expired, he or she may request a
                     conference with the Superintendent or designee to appeal the Lev
                     el One decision.

                     The appeal notice must be filed in writing within ten days of the
                     date of the written Level One response or, if no response was re
                     ceived, within ten days of the Level One response deadline.
                     After receiving notice of the appeal, the Level One administrator
                     shall prepare and forward a record of the Level One complaint to
                     the Level Two administrator. The individual may request a copy of
                     the Level One record.

                     The Level One record shall include:

                     1.   The written complaint and any attachments.
                     2.   All other documents submitted by the individual at Level One.
                     3.   The written response issued at Level One and any attach
                          ments.

                     4.   All other documents relied upon by the Level One administra
                          tor in reaching the Level One decision.
                     The Superintendent ordesignee shall schedule a conference with
                     in ten days after the appeal notice is filed. The conference shall be
                     limited to the issues and documents considered at Level One. At
                     the conference, the individual may provide information concerning
                     any documents orinformation relied upon by the administration for
                     the Level One decision. The Superintendent or designee may set
                     reasonable time limits for the conference.

                     The Superintendent or designee shall provide the individual a writ
                     ten response within ten days following the conference. In reaching
                     a decision, the Superintendent or designee may consider the Level
                     One record, information provided at the Level Two conference, and
                     any other relevant documents or information the Superintendent or
                     designee believes will help resolve the complaint.
                     Recordings of the Level One and Level Two conferences, if any,
                     shall be maintained with the Level One and Level Two records.


DATE ISSUED: 4/28/2015                                                                4 of 6
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PUBLIC COMPLAINTS                                                                        GF
                                                                                  (LOCAL)


LEVELTHREE           If the individual did not receive the relief requested at Level Two or
                     if the time for a response has expired, he or she may appeal the
                     decision to the Board.

                     The appeal notice must be filed in writing within ten days of the
                     date of the written Level Two response or, if no response was re
                     ceived, within ten days of the Level Two response deadline.
                     The Superintendent or designee shall inform the individual of the
                     date, time, and place of the Board meeting at which the complaint
                     will be on the agenda for presentation to the Board.
                     The Superintendent or designee shall provide the Board the record
                     of the Level Two appeal. The individual may request a copy of the
                     Level Two record.

                     The Level Two record shall include:

                     1.   The Level One record.

                     2.   The notice of appeal from Level One to Level Two.
                     3.   The written response issued at Level Two and any attach
                          ments.

                     4.   All other documents relied upon by the administration in
                          reaching the Level Two decision.
                     The appeal shall be limited to the issues and documents consid
                     ered at Level Two, except that if at the Level Three hearing the
                     administration intends to rely on evidence not included in the Level
                     Two record, the administration shall provide the individual notice of
                     the nature of the evidence at least three days before the hearing.
                     The District shall determine whether the complaint will be present
                     ed in open or closed meeting in accordance with the Texas Open
                     Meetings Act and other applicable law. [See BE]
                     The presiding officermay set reasonable time limits and guidelines
                     for the presentation, including an opportunity for the individual and
                     administration to each make a presentation and provide rebuttal
                     and an opportunity for questioning by the Board. The Board shall
                     hear the complaint and may request that the administration provide
                     an explanation for the decisions at the preceding levels.
                     In addition to any other record of the Board meeting required by
                     law, the Board shall prepare a separate record of the Level Three
                     presentation. The Level Three presentation, including the presen
                     tation by the individual or his or her representative, any presenta
                     tion from the administration, and questions from the Board with re-


DATE ISSUED: 4/28/2015                                                                5 of 6
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PUBLIC COMPLAINTS                                                                       GF
                                                                                  (LOCAL)


                     sponses, shall be recorded by audio recording, video/audio record
                     ing, or court reporter.
                     The Board shall then consider the complaint. It may give notice of
                     its decision orally or in writing at any time up to and including the
                     next regularly scheduled Board meeting. If the Board does not
                     make a decision regarding the complaint by the end of the next
                     regularly scheduled meeting, the lack of a response by the Board
                     upholds the administrative decision at Level Two.




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