                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                        §
    EL PASO INDEPENDENT SCHOOL
    DISTRICT, DR. LORENZO GARCIA,                       §
    AND MARK MENDOZA,
                                                        §                 No. 08-11-00329-CV
                             Appellants,
                                                        §                      Appeal from
    v.
                                                        §                  327th District Court
    MICHAEL McINTYRE AND
    LAURA McINTYRE, INDIVIDUALLY                        §               of El Paso County, Texas
    AND ON BEHALF OF THEIR
    CHILDREN, K.M., L.M., C.M., M.M.,                   §                   (TC # 2007-3210)
    AND L.M.,
                                                        §
                             Appellees.
                                                        §

                                                 OPINION

          In this accelerated interlocutory appeal, we must balance a couple’s right to home school

their children against the rights of a school district to investigate the curriculum utilized.

Michael and Laura McIntyre, individually and on behalf of five of their minor children, filed this

lawsuit for damages and declaratory and injunctive relief after Class C misdemeanor truancy

complaints were filed in a justice court against three of the children. 1 Originally, the McIntyres

filed suit against three family members, the El Paso Independent School District (EPISD), and

five of the District’s employees. The claims against the family members and three of the five


1
    Because we will mention many members of the McIntyre family, we will refer to them by their given names.
District employees were later dismissed, leaving the District, former superintendent Dr. Lorenzo

Garcia, and attendance officer Mark Mendoza as the only remaining defendants.

                                   FACTUAL SUMMARY

       The McIntyres have nine children, including the five minor children who are parties to

the law suit. After completion of the Fall 2004 semester, the McIntyres withdrew their children

from private school to begin home schooling them. Initially, the children were taught out of

empty space in a motorcycle dealership owned by Michael and his twin brother, Tracy. Tracy

testified in his deposition that during the time home schooling operated out of the dealership, he

never observed the children pursuing traditional schoolwork. While the children would sing or

play instruments, he never saw them reading books or doing arithmetic, nor did he observe any

computers or other school equipment. Tracy overhead one of the McIntyre children tell a cousin

that they did not need to do schoolwork because they were going to be raptured. Tracy discussed

the situation with his parents, Gene and Shirene. In August 2005, due to a family dispute, the

home school was moved from the motorcycle dealership to a rental house owned by the

McIntyres.

                  Complaint To The District and Mendoza’s Investigation

       In January 2006, the District received an anonymous complaint that the McIntyre

children were not being educated. In November, Gene and Shirene met with Mark Mendoza, the

District’s designated attendance officer, and expressed concerns that their grandchildren were not

attending school or otherwise receiving a proper education.        After the meeting, Mendoza

confirmed that the oldest of the McIntyre children, Tori, had run away from home at age

seventeen so she could “attend school.” He discovered that when Tori enrolled at Coronado

High School, she was unable to provide any information regarding the level of her education or



                                              -2-
the curriculum provided as part of her home school education. The McIntyres refused to provide

any information to the District on Tori’s behalf. As a result, Tori was placed as a second

semester freshman, a year and a half behind her age group.

       In December 2006, Mendoza asked a representative from Hornedo Middle School to visit

the McIntyre home and inquire about the curriculum used to teach their children. The McIntyres

answered the door, but Laura said only that she was tired of being harassed and would call her

attorney. Lynda Sanders of Polk Elementary School was also asked to go to the McIntyre home

and obtain a signed home school verification form. The McIntyres refused to sign the form or

provide any other information regarding their home school curriculum. Following her visit,

Sanders faxed the home school verification form to a Home School Legal Defense Association

(HLSDA) attorney in Washington. Sanders also reported to the campus principal that the

Mclntyres were uncooperative and had refused to sign the form. Sanders later received a letter

from the HSLDA attorney. The letter claimed that the McIntyres were “in full compliance” but

that they declined to “submit any additional information.” The letter did not reflect that the

attorney was licensed in Texas, or had any personal knowledge of the educational studies

occurring in the McIntyre home. In January 2007, following their refusal to provide information

to campus personnel, various notices and warnings were given to the McIntyres notifying them

of their children’s failure to attend school, and requesting conferences. The McIntyres did not

cooperate with any of the requests for information or meetings.

                                    Truancy Complaints Are Filed

       Relying on information provided by the children’s grandparents, his confirmation of

information regarding Tori’s inability to describe her home school education, and the refusal of

the McIntyres to provide the District with any written assurance regarding the curriculum they



                                              -3-
were using “from somebody who had firsthand knowledge of the homeschooling education that

was happening in the home,” Mendoza filed truancy complaints. In the blanks that would

normally have listed the dates of absence on the truancy complaint, Mendoza wrote, “Has not

met home school verification requirements.” According to Mendoza, he did not believe that the

McIntyres had provided sufficient evidence of a bona fide home school.2

         After the complaints were filed, HSLDA sent a second letter to Sanders, with copies to

other District personnel. The letter was essentially identical to the first letter, but it also included

a threat to file suit.

                         Communications After Truancy Complaints Are Filed

         After receiving the citations, Laura called Mendoza. She recorded the conversation and a

transcript of the recording is contained in the record. Janet Flores, the Juvenile Case Manager

for the Justice of the Peace Court where the truancy complaints were filed, testified that she

mailed notices of the truancy charges to the McIntyres. The notices advised them of their plea

options and their rights, including rights to a jury trial, to retain counsel, and to subpoena

witnesses. Laura called Flores after receiving notice and told her that she and her husband were

home schooling their children. Flores informed Laura that she could submit documentation

showing that she was, in fact, providing an education at home to her children, but Laura

responded that she did not feel that it would be “right” to do so.3



2
   The truancy complaints were filed without any screening or review by the District Attorney’s Office, as was
customary at the time. As attendance officer, Mendoza had the authority to file a truancy complaint, but after filing,
an Assistant District Attorney would ultimately decide whether to try or dismiss the case. However, per subsequent
agreement of the EPISD and the District Attorney’s Office, the DA now screens truancy reports involving alleged
home school situations prior to filing, and cases will not be filed without its approval.
3
   In an affidavit submitted over two years after filing this lawsuit, Laura identified the curriculum that they had
purchased as the A Beka curriculum, the same curriculum that had been used at the children’s private school. When
Mendoza was attempting to ascertain whether they were conducting a bona fide home school, however, they refused
to identify any curriculum that they were using.

                                                        -4-
                                 PROCEDURAL HISTORY

       In July 2007, the McIntyres initiated the instant suit.    They sought declaratory and

injunctive relief and damages based on alleged violations of the Texas Education Code, the

Texas Religious Freedom Restoration Act (TRFRA), the Texas Constitution, and the United

States Constitution.

                 Truancy Complaints Investigated and Ultimately Dismissed

       Once this suit was filed, the District informed Matthew Moore, an assistant district

attorney, about the case and its history. Moore was asked to use his independent judgment in

pursuing the truancy complaints. The McIntyres later entered pleas of not guilty in all of the

truancy cases, and requested a separate jury trial for each. On September 7, 2007, Moore wrote a

letter to the McIntyres advising that if they would provide a signed statement that they were

meeting state requirements, he would dismiss the truancy charges. The McIntyres refused to do

so. In October 2007, Moore contacted Tori and asked if she would vouch for the fact that her

parents were using a curriculum, but Tori declined to get involved. Moore testified in his

deposition that he believed Tori and her grandparents would have testified that the children were

not being educated or “learning anything,” but they did not want to testify. Ultimately, Moore

decided to dismiss the truancy complaints.

                                  Motions in the Trial Court

       The District defendants filed pleas to the jurisdiction and a motion for summary judgment

based on the McIntyres’ failure to exhaust administrative remedies; a plea to the jurisdiction as

to the McIntyres’ TRFRA claim; motions to dismiss based on the election of remedies provision

in Section 101.106 of the Texas Civil Practice & Remedies Code; and a motion for summary




                                              -5-
judgment based on the Education Code, official immunities as to the McIntyres’ state law claims,

and absolute and qualified immunities as to the McIntyres’ Section 1983 federal claims.

                                        Issues For Review

       Appellants bring nine issues for review. In Issue One, the District complains that the trial

court erred in denying its plea to the jurisdiction with respect to the McIntyres’ failure to provide

the required pre-suit notice of their TRFRA claims. The McIntyres have conceded this point. In

Issue Two, EPISD argues that the trial court erred in denying its plea to the jurisdiction based on

the McIntyres’ failure to exhaust administrative remedies prior to filing suit. In Issues Five, Six,

Seven, and Eight, Appellants present various arguments in support of their claim that the trial

court erred in refusing to dismiss the state law claims against the District employees. In Issue

Five, they argue that based on the election of remedies provision in Texas Civil Practice and

Remedies Code 101.106, the trial court erred in allowing the McIntyres to pursue state law

claims against both the District and its employees, despite the District’s motion to dismiss. In

Issue Six, Appellants allege an exhaustion of administrative remedies claim closely related to

that in Issue Two. Specifically, in Issue Six, Appellants allege that the trial court erred in

denying the District employees’ plea to the jurisdiction and (first) motion for summary judgment,

and in ruling that the McIntyres were not required to exhaust administrative remedies despite

Section 22.0514 of the Texas Education Code. In Issues Seven and Eight, Appellants contend

that the McIntyres’ state law claims against the District employees were barred by professional

and governmental immunity, and therefore the trial court erred in denying Mendoza’s second

amended motion for summary judgment on immunity grounds.

       Turning to the McIntyres’ federal law claims, Appellants complain in Issues Three and

Four that the trial court erred in refusing to grant summary judgment. Specifically, Issue Three



                                                -6-
posits that the employees were entitled to absolute immunity from the federal claims while Issue

Four posits that the employees were entitled to qualified immunity with respect to the same

claims.

          Finally, in Issue Nine, Appellants allege that the trial court erred in overruling their

objections to the McIntyres’ summary judgment evidence. Specifically, they argue that the trial

court should have sustained their objections with respect to Laura’s February 2010 and March

2011 affidavits.

          In sum, Appellants ask that we: (1) reverse all three disputed orders of the trial court; (2)

render judgment dismissing all of the McIntyres’ state law claims against the District; (3)

dismissing all claims of any nature against Dr. Garcia and Mendoza with prejudice; (4) awarding

Appellants their costs and fees incurred herein and any such further relief to which they may be

entitled; and (4) remanding this case to the trial court for further proceedings regarding the

claims and counterclaims that remain pending there, consistent with our opinion and judgment.

                                     THE LEEPER DECISION

          Both parties rely heavily on the Texas Supreme Court’s decision in Texas Education

Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994). Therefore, we begin our discussion with an

overview of home school law in Texas.

          In Leeper, home school parents and home school curriculum providers (the plaintiffs)

brought a class action suit against state officials (the defendants), challenging construction of

compulsory attendance laws. Leeper, 893 S.W.2d at 432. The plaintiffs sought a declaratory

judgment that the defendants had misinterpreted the private school exemption under Section

25.086(a) of the Texas Education Code.           Id. at 438.   The plaintiffs also claimed that the

defendants “enforcement of the compulsory attendance law infringed upon their constitutional



                                                  -7-
rights, in violation of the Civil Rights Act, 42 U.S.C. § 1983.” Id. As a result, the plaintiffs

sought an injunction prohibiting all school districts and attendance officers from enforcing the

compulsory attendance law against bona fide home schools. Id.

       The Texas Supreme Court began its analysis by setting the historical backdrop of the

Texas school system. Id. at 433-34. It looked to the first compulsory attendance law enacted in

1916 and traced the development of the Education Code and compulsory attendance laws

forward. Id. The court then addressed the issue of whether a home school could fall within the

private or parochial school exemption from the compulsory attendance requirements. Id. The

court concluded that a home school can be a private school within the meaning of the statutory

exemption found in Section 25.086(a)(1).

       Leeper does not hold, or even imply, that every alleged “home school” automatically fits

within the exemption. Rather, the case simply allows certain home schools meeting specific

requirements to qualify as “private or parochial schools” for purposes of exemption. In fact, the

plaintiffs did not argue that every home school falls within the exemption, but only, “homes in

which children are taught in a bona fide manner from a curriculum designed to meet basic

education goals.” Leeper, 893 S.W.2d at 443. The central issue was not whether the school

district had the authority to investigate truancy claims or to request information from parents of

home school children regarding their curriculum. Instead, the question was whether any home

school could fit within the private school exemption and whether or not the use or non-use of

standardized achievement tests by home school parents could be outcome determinative of the

home school status under the applicable exemption. Indeed the plaintiffs recognized that the use

of standard achievement tests could be considered in ascertaining whether a home school

curriculum was being taught in a bona fide manner, but maintained that test scores could not be



                                              -8-
the determining factor. The court agreed. But nothing in Leeper suggests that an attendance

officer does not have the right to investigate truancy claims, or that home school parents need not

prove they are teaching their children in a bona fide manner from an appropriate curriculum.

Leeper merely provides the possibility for a home school to qualify for exemption from

compulsory attendance laws and prevents the determination as to whether or not an individual

home school qualifies from turning on whether the home school provides standardized

achievement test scores.

                  TEXAS RELIGIOUS FREEDOM RESTORATION ACT

       In Issue One, Appellants argue that the trial court erred in denying the District’s plea to

the jurisdiction as to the McIntyres’ claims under the TRFRA because they failed to meet the

pre-suit notice requirements under Chapter 110 of the Texas Civil Practice and Remedies Code.

As we have noted, the McIntyres concede the issue. We sustain Issue One. We reverse and

render judgment in the District’s favor on this claim.

                    EXHAUSTION OF ADMINISTRATIVE REMEDIES

       In Issue Two, Appellants argue that the trial court erred by denying the District’s plea to

the jurisdiction and special exceptions because the McIntyres failed to exhaust their available

administrative remedies as to their remaining state law claims. Standard of Review

       A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of

action without regard to whether the claims have merit. Bland Independent School District v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction contests the trial court’s

authority to determine the subject matter of the cause of action. State v. Holland, 221 S.W.3d

639, 642 (Tex 2007). The existence or absence of subject matter jurisdiction is a question of law

which we review de novo. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d



                                               -9-
217, 226 (Tex. 2004). We look to the plaintiffs’ petition to determine whether the facts as pled

affirmatively demonstrate that jurisdiction exists. Holland, 221 S.W.3d at 642-43. We must

accept the allegations in the petition as true, construe them in favor of the pleading parties, and

examine the pleaders’ intent. Miranda, 133 S.W.3d at 227. We also consider any evidence

relevant to jurisdiction without considering the merits of the claim beyond the extent necessary

to determine jurisdiction. Id. However, if the relevant evidence is undisputed or fails to raise a

fact question on the jurisdiction issue, the trial court rules on the plea as a matter of law. Id.

at 228.

                             The Exhaustion of Remedies Doctrine

          Under Texas law, an aggrieved party whose claim concerns the administration of school

laws and involves disputed fact issues is required to exhaust all administrative remedies prior to

filing suit. Nairn v. Killeen Independent School Dist., 366 S.W.3d 229, 240 (Tex.App.--El Paso

2012, no pet.), citing Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570

(1945); Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d 792, 795 (Tex.App.--El Paso 2005, pet.

denied); see also TEX.EDUC.CODE ANN. § 7.057 (West 2012).               “Requiring exhaustion of

administrative remedies is not meant to deprive an aggrieved party of any legal rights. It is

meant, rather, to provide an orderly procedure by which aggrieved parties may enforce those

rights.” Ysleta Independent School District v. Griego, 170 S.W.3d 792, 795 (Tex.App.--El Paso

2005, pet. denied), citing Hinojosa v. San Isidro Indep. Sch. Dist., 273 S.W.2d 656, 657-58

(Tex.Civ.App.--San Antonio 1954, no writ). The requirement applies to grievances arising under

school laws whether it is against a professional employee of a school district or a school district

itself. See Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex.App.--Tyler 1997, pet. denied)(holding

that regardless of whether a grievance is against a professional employee of a school district, or a



                                               - 10 -
school district itself, a complainant must exhaust his administrative remedies in order to facilitate

settlement before resorting to judiciary for resolution). This requirement is consistent with long

standing public policy favoring keeping school controversies, as far as possible, out of the courts.

See Palmer Pub. Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158, 160 (Tex.Com.App. 1937)(also

stating, “Proper procedure for settlement of such controversies has been, we think, plainly

provided by appeal to school authorities, and should be followed and exhausted before resort to

legal proceedings in the courts.”).

                                      Exceptions to the Doctrine

       Despite these general rules, there are several recognized exceptions.         Exhaustion of

administrative remedies for claimants seeking relief from the administration of school laws is not

necessary if: (1) the aggrieved party will suffer irreparable harm and the administrative agency

is unable to provide relief; (2) the claims are for a violation of a constitutional or federal

statutory right; (3) the cause of action involves pure questions of law and the facts are not

disputed; (4) the Commissioner of Education lacks jurisdiction over the claims; (5) the

administrative agency acts without authority; or (6) the claims involve parties acting outside the

scope of their employment. Dotson v. Grand Prairie Independent School Dist., 161 S.W.3d 289,

291-92 (Tex.App.--Dallas 2005, no pet.), citing Gutierrez v. Laredo Independent School District,

139 S.W.3d 363, 366 (Tex.App.--San Antonio 2004, no pet.), Jones v. Dallas Independent

School District, 872 S.W.2d 294, 296 (Tex.App.--Dallas 1994, writ denied), and Mitchison v.

Houston Independent School District, 803 S.W.2d 769, 773-74 (Tex.App.--Houston [14th Dist.]

1991, writ denied).

       In addition to the administrative scheme set forth as part of the Education Code, the

District maintains policies regarding the filing of complaints by parents or members of the



                                                - 11 -
public. The District’s policy provides for three different “levels” of administrative review.

Specifically, complaints are categorized in relevant part as follows:

LEVEL ONE                 An individual who has a complaint or concern shall request a
                          conference with the appropriate administrator within 15 days of the
                          event or action that is the subject of the complaint. The administrator
                          shall hold a conference with the individual within seven days of the
                          request. The administrator shall have seven days following the
                          conference within which to respond in writing to the complainant.

LEVEL TWO                 If the outcome of the conference with the administrator is not to the
                          complainant’s satisfaction or the time for a response has expired, the
                          complainant may request a conference with the superintendent or
                          designee. The request must be filed within seven days following receipt
                          of a response or, if no response is received, within seven days of the
                          response deadline. The superintendent or designee shall hold the
                          conference within seven days after receiving the request.

                          Prior to or at the time of the conference the complainant shall submit a
                          written complaint that includes his or her signed statement of the
                          complaint, any evidence in its support, the solution sought, and the date
                          of the conference with the administrator. The superintendent or
                          designee shall have seven days following the conference within which
                          to respond in writing to the complainant.

LEVEL THREE               If the outcome of a conference with the superintendent or designee is
                          not to the complainant’s satisfaction or if the time for a response has
                          expired, the complainant may submit to the superintendent or designee
                          a request to place the matter on the agenda of a future Board meeting.
                          The request shall be in writing and must be filed within seven days of
                          the response or, if no response is received, within seven days of the
                          response deadline.

                          The Superintendent shall inform the complainant of the date, time, and
                          place of the meeting, in writing.

The policies apply to complaints against the District or a District employee acting within the

scope of employment. Nothing in the policy limits the application to complaints filed by a

parent of a District student.

       The McIntyres claims involve the “school laws of the State” and it is clear that they did

not pursue administrative remedies prior to filing suit. Unless an exception to the general rule

applies, the trial court lacked subject matter jurisdiction. See Hitchcock v. Board of Trustees

Cypress-Fairbanks Independent School District, 232 S.W.3d 208, 213 (Tex.App.--Houston [1st

                                               - 12 -
Dist.] 2007, no pet.)(until all administrative remedies have been exhausted, a trial court lacks

subject matter jurisdiction). However, before we address whether the causes of action fall within

an exception to the exhaustion requirement, we first address the McIntyres contentions that: (1)

based on Section 1.001(a) of the Texas Education Code, no administrative scheme set forth in

either Title 1 or Title 2 of the Code applies to their children because their children never attended

public school; and (2) that the filing of the truancy complaint in justice court eliminated any

exhaustion of administrative remedies requirement.

        The “school laws of this state” include Titles 1 and 2 of the Texas Education Code “and

rules adopted under those titles.” See TEX.EDUC.CODE ANN. § 7.057(f)(2). The McIntyres

assert that because their children never attended public school, they are essentially exempt. This

argument rests on the introductory language in Section 1.001(a) which provides: “This code

applies to all educational institutions supported in whole or in part by state tax funds unless

specifically excluded by this code.” TEX.EDUC.CODE ANN. § 1.001(a). Appellants argue that

while Section 1.001(a) indicates that institutions which receive state tax funds are subject to the

Education Code, it does not expressly indicate that all other institutions are not subject to the

Code.    See Institute for Creation Research Graduate School v. Texas Higher Education

Coordinating Board, No. A-09-CA-382-SS, 2010 WL 2522529, at *6 (W.D.Tex. June 18, 2010,

no pet.)(finding that Section 1.001(a) “does not limit the applicability of the Education Code

only to institutions supported by state tax funds.”). We agree.

        Next, we address the McIntyres claim that they were exempt from the exhaustion of

administrative remedies requirement based on the fact that the District filed truancy charges

before they filed their lawsuit.     According to the McIntyres, the District sought judicial

intervention such that the McIntyres were not required to pursue administrative remedies.



                                               - 13 -
However, the truancy complaints were filed in the name of the State of Texas; the District was

not a party to the justice court proceedings. Accordingly, the filing of truancy charges did not

negate the McIntyres’ duty to exhaust administrative remedies prior to filing suit.

       Having established the existence of an applicable administrative scheme and the

McIntyres’ failure to exhaust their administrative remedies thereunder, we next address whether

some exception to the general rule applies such that the McIntyres were excused from any

obligation to first exhaust their administrative remedies.

                                    Questions of Fact or Law?

       Appellants argue that the dispute involves questions of fact rather than pure questions of

law, thereby requiring the McIntyres to exhaust their administrative remedies before filing suit.

The McIntyres counter that their claims do not involve questions of fact, and since their claims

involve only issues that are purely questions of law, they were not required to exhaust their

administrative remedies. Although the McIntyres acknowledge the existence of many disputed

facts, they claim that none affects the issue on which the District contends exhaustion of

administrative remedies was required. The McIntyres frame the issue thusly:

       [D]oes the District have the authority to demand to review (and, by implication,
       approve or disapprove) a home school’s curriculum and obtain progress reports
       for its students (or require compliance with TEA-mandated curriculum as an
       alternative), and file criminal charges as a consequence for failure to capitulate to
       this demand?

       We agree with Appellants that a fact issue exists. The type of factual dispute found here

is exactly the type of claim that should be reviewed through the administrative process before the

court accepts jurisdiction. See Hicks v. Lamar Consolidated Independent School District, 943

S.W.2d 540, 543 (Tex.App.--Eastland 1997, no writ); Muckelroy v. Richardson Independent

School District, 884 S.W.2d 825, 830 (Tex.App.--Dallas 1994, writ denied). The allegations in



                                               - 14 -
the McIntyres pleadings support our conclusion. They seek “a declaration that [the McIntyres]

are innocent as to all charges filed by EPISD.” The determination of a party’s guilt is by

definition a question of fact. See BLACK’S LAW DICTIONARY 1260 (7th ed. 1999)(providing an

example of a “question of fact” as “whether a particular criminal defendant is guilty of an

offense.”). The McIntyres also sought a declaration that they could continue to direct the

“education of their children and/or pursue their education free from fabricated civil/criminal

charges.” If this particular claim does not include a factual determination, then it also does not

provide a justiciable request for declaratory relief. In other words, if the request seeks only a

judicial declaration that Appellants are not permitted to violate state law, it is not justiciable

because there is no controversy with respect to whether Appellants must abide by Texas law.

See Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.

1993)(holding that a declaratory judgment is appropriate only if a justiciable controversy exists

as to the rights and status of the parties and the controversy will be resolved by the declaration

sought).   “To constitute a justiciable controversy, there must exist a real and substantial

controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.”

Bexar-Medina-Atascosa Counties Water Control and Improvement Dist. No. 1 v. Medina Lake

Protection Ass’n, 640 S.W.2d 778, 779-80 (Tex.App.--San Antonio 1982, writ ref’d n.r.e.);

Chapman v. Marathon Mfg. Co., 590 S.W.2d 549, 552 (Tex.Civ.App.--Houston [1st Dist.] 1979,

no writ); Davis v. Dairyland County Mutual Insurance Company of Texas, 582 S.W.2d 591, 593

(Tex.Civ.App.--Dallas 1979, writ ref’d n.r.e.); Sub-Surface Constr. Co. v. Bryant-Curington,

Inc., 533 S.W.2d 452, 456 (Tex.Civ.App.--Austin 1976, writ ref’d n.r.e.); Littlejohn v. Johnson,

332 S.W.2d 439, 441 (Tex.Civ.App.--Waco 1960, no writ).




                                              - 15 -
       Finally, the determination of whether the McIntyres meet the requirements of a bona fide

curriculum under Leeper and therefore qualify as exempt from the compulsory school attendance

requirements involves a fact issue. This determination would require the McIntyres to submit

the same information Mendoza requested but they refused to provide. Therefore, to the extent

the trial court’s conclusion was based on a finding that the controversy involves only questions

of law, it was erroneous.

                             Excused by Constitutional Allegations?

       Next, we address Appellants’ contention that the presence of constitutional allegations

did not excuse the McIntyres from the requirement to exhaust administrative remedies. There is

no direct administrative remedy for claims that a school board took action that violated the

constitutional rights of the complaining party, because those are not part of the school laws of the

state. Jones v. Clarksville Independent School Dist., 46 S.W.3d 467, 474 (Tex.App.--Texarkana

2001, no writ). However, where the constitutional claims “are only ancillary to and supportive

of” a complaint about the school district’s application of school law, the complainant must first

exhaust the administrative process. Dotson, 161 S.W.3d at 292. In addition, a party who alleges

a constitutional claim must first exhaust available administrative remedies that may moot the

constitutional claim.

       Appellants contend that the constitutional issues presented here “do not stand alone as an

attack on the actions . . . of the District,” but instead are “inextricably intertwined with, and in

fact subject to, their claim that they are in compliance with the compulsory school attendance

provisions of the Education Code.” In addition, Appellants assert that because the McIntyres

constitutional claims can be decided on non-constitutional grounds, i.e. whether they fall within

the Leeper exception, a court should not address their constitutional claims.



                                               - 16 -
       Several courts have recognized that exhaustion is required when a constitutional issue

involves the administration of school laws and turns on fact issues. See Poole v. West Hardin

County Consolidated Independent School District, 385 S.W.3d 52 (Tex.App.--Beaumont 2011),

rev’d on other grounds, 384 S.W.3d 816 (Tex. 2012); Janik v. Lamar Consolidated Independent

School District, 961 S.W.2d 322, 323 (Tex.App.--Houston [1st Dist] 1997, pet. denied). The

McIntyres’ claims all relate to the administration and applicability of school laws, specifically to

the laws requiring attendance officers to investigate complaints of truancy and filed criminal

charges based on the outcome of those investigations. Therefore, because all of the McIntyres’

claims relate directly to school laws and the scope of their application, and the outcome of such

dispute renders their constitutional claims moot, they were not excused of their duty to exhaust

simply by asserting such constitutional claims.

                                       Irreparable Harm?

       The next exception to the exhaustion of administrative remedies is irreparable harm. No

exhaustion is required where irreparable harm will be suffered and the agency cannot provide

relief. See Houston Federation of Teachers, Local 2415 v. Houston Independent School District,

730 S.W.2d 644, 645 (Tex. 1987). Appellants argue that the McIntyres were never at risk of

irreparable harm. More specifically, Appellants assert that the McIntyres’ claims that they were

“under continuing threat” and that they “faced the prospect of additional criminal complaints,”

are nothing more than unsupported speculation.          According to Appellants, the filing of

misdemeanor truancy complaints cannot be considered to cause “irreparable injury.”

       As Appellants correctly point out, we must presume that public officials will discharge

their duties lawfully and in good faith. See Vandygriff v. First Savings and Loan Ass’n, 617

S.W.2d 669, 673 (Tex. 1981); Kimbrough v. Walling, 371 S.W.2d 691, 692 (Tex. 1963);



                                               - 17 -
Eldorado Independent School District v. Becker, 120 S.W.2d 476, 477 (Tex.Civ.App.--Austin

1938, writ dism’d). Here, Mendoza’s deposition testimony supports this presumption. He

specifically stated that the District “has no intention of filing this same case against this

particular set of parents.” The McIntyres’ attorney then asked Mendoza, “If this conduct was

criminal in ‘07, why wouldn’t it be in ‘10?” Mendoza responded:

       Sir, one of the internal procedures is to review the case with the assistant district
       attorney. The assistant district attorney has dismissed these charges, and so
       therefore, filing the same type of charge unless there is some credible evidence
       that something has changed dramatically in the household, would be moot.

       In addition, written warnings were provided to McIntyres before any truancy complaints

were filed. Therefore, the McIntyres could have initiated the administrative process before the

truancy complaints were even filed. Had the McIntyres pursued their administrative remedies, it

must be presumed that the school administrators, the Superintendent, the Board of Trustees, and

the Commissioner of Education would have all acted in accordance with the law. Similarly,

should the District or its employees be presented with “credible evidence that something has

changed dramatically in the household” in the future triggering another investigation, we must

presume officials will act in accordance with applicable laws.          Had the truancy charges

proceeded in the justice court, the McIntyres could have defended the claims in court, and it must

likewise be presumed that the justice court would have afforded them a fair trial, and ruled in

accordance with the law.

       Any relief the McIntyres sought with respect to injunctive relief from further litigation

was inappropriate as to the District or the District employees because once the truancy

complaints were filed, the District Attorney had the authority to dismiss the case. We thus

conclude that the trial court erred in finding that the McIntyres were not required to exhaust

administrative remedies before filing suit. Because the remaining state law claims against the

                                              - 18 -
District should have been dismissed, we sustain Issue Two and reverse and render judgment in

the District’s favor.

      DISMISSAL OF STATE LAW CLAIMS AGAINST DISTRICT EMPLOYEES:
                         ELECTION OF REMEDIES

        In Issues Five, Six, Seven, and Eight, Appellants present various issues all in support of

the argument that the trial court erred by refusing to dismiss the McIntyres’ state law claims

against the District employees. In Issue Five, Appellants argue that the trial court erred in

denying their motion to dismiss, special exceptions and plea to the jurisdiction based on the

election of remedies provision contained in Texas Civil Practice and Remedies Code Section

101.106. In Issue Six, Appellants complain that the trial court erred because the McIntyres failed

to exhaust their administrative remedies.4 Finally, in Issues Seven and Eight, Appellants contend

that the trial court erred because the McIntyres’ state law claims against District employees are

barred by professional immunity and qualified immunity. Issue Five is dispositive on this

subject.

        A plea to the jurisdiction based on sovereign or governmental immunity challenges a trial

court’s jurisdiction. See Miranda, 133 S.W.3d at 226. We review the trial court’s ruling de

novo. See id. As originally enacted, Section 101.106 was entitled “Employees Not Liable After

Settlement or Judgment,” and stated:

        A judgment in an action or a settlement of a claim under this chapter bars any
        action involving the same subject matter by the claimant against the employee of
        the governmental unit whose act or omission gave rise to the claim.

Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 TEX.GEN.LAWS 3242, 3305 (current

version at TEX.CIV.PRAC.&REM.CODE ANN. § 101.106).                     Thus, the statute provided some

protection for employees when claims against the governmental unit were reduced to judgment

4
   Section 22.0514 of the Texas Education Code requires the exhaustion of remedies before filing suit against a
professional employee of a school district. See TEX.EDUC.CODE ANN. § 22.0514 (West 2012).

                                                    - 19 -
or were settled. See Mission Consolidated Independent School District v. Garcia, 253 S.W.3d

653, 656 (Tex. 2008). Under the original version, nothing prevented a plaintiff from pursuing

alternative theories against both employees and the governmental unit through trial or other final

resolution. See id. In 2003, as part of tort reform efforts, the Legislature amended Section

101.106. Id. at 656-57. Today, the relevant subsections read as follows:

        (a) The filing of a suit under this chapter against a governmental unit constitutes
        an irrevocable election by the plaintiff and immediately and forever bars any suit
        or recovery by the plaintiff against any individual employee of the governmental
        unit regarding the same subject matter.

                                                 .       .       .

        (e) If a suit is filed under this chapter against both a governmental unit and any of
        its employees, the employees shall immediately be dismissed on the filing of a
        motion by the governmental unit.

        (f) If a suit is filed against an employee of a governmental unit based on conduct
        within the general scope of that employee’s employment and if it could have been
        brought under this chapter against the governmental unit, the suit is considered to
        be against the employee in the employee’s official capacity only. On the
        employee’s motion, the suit against the employee shall be dismissed unless the
        plaintiff files amended pleadings dismissing the employee and naming the
        governmental unit as defendant on or before the 30th day after the date the motion
        is filed.5

TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a), (e), (f)(West 2011). Under the current election-

of-remedies provision, a plaintiff is required to decide at the time of filing suit whether an

employee acted independently and is solely liable, or whether the employee acted within the

general scope of his or her employment, thereby making the governmental unit vicariously liable

for the employee’s acts.6 See Garcia, 253 S.W.3d at 657. In doing so, the election of remedies

5
 The District is a “governmental unit” as defined by Section 101.001(3) of the Texas Civil Practice and Remedies
Code. Likewise, Dr. Lorenzo Garcia and Mark Mendoza are “employees” of the District. See TEX.CIV.PRAC.&
REM.CODE ANN. §§ 101.001(2), (3).
6
   Under Texas Civil Practice and Remedies Code Sections 104.001 and 104.002, State agencies are required to
indemnify their employees for litigation expenses if the employee’s actions were within the course and scope of his
or her employment. See TEX.CIV.PRAC.&REM.CODE ANN. §§ 104.001, 104.002.

                                                      - 20 -
provision is designed to reduce the resources that the government and its employees must use in

defending redundant litigation and alternative theories of recovery. See id. “By requiring a

plaintiff to make an irrevocable election at the time suit is filed between suing the governmental

unit under the Tort Claims Act or proceeding against the employee alone, section 101.106

narrows the issues for trial and reduces delay and duplicative litigation costs.” See id. In sum,

       [u]nder the [TTCA]’s election scheme, recovery against an individual employee is
       barred and may be sought against the governmental unit only in three instances:
       (1) when suit is filed against the governmental unit only; (2) when suit is filed
       against both the governmental unit and its employee; or (3) when suit is filed
       against an employee whose conduct was within the scope of his or her
       employment and the suit could have been brought against the governmental unit.
       When suit is filed against the employee, recovery against the governmental unit
       regarding the same subject matter is barred unless the governmental unit consents
       to suit.    Because the decision regarding whom to sue has irrevocable
       consequences, a plaintiff must proceed cautiously before filing suit and carefully
       consider whether to seek relief from the governmental unit or from the employee
       individually. [Internal cites omitted].

Id.

       The District filed a motion to dismiss based on Section 101.106(e). The McIntyres

counter that they can maintain their duplicative claims against both the District and the

employees because they “do not seek damages from Mr. Mendoza for any state-law claim.” This

assertion is inconsistent with their pleadings. Their original petition alleged claims for malicious

prosecution and violations of the due process and equal protection clauses of the Texas

Constitution, and sought recovery of both actual and exemplary damages. In their first amended

petition, they once again asserted claims for malicious prosecution. They also pursued claims for

due process and religious liberty violations under the Texas Constitution and once again prayed

for recovery of actual and exemplary damages. Finally, in the third amended petition, they pled

state law claims for malicious prosecution, equal protection, due process, privacy, and religious

liberty, and they sought an award of actual damages in the amount of $800,000, plus any

                                               - 21 -
exemplary damages. All of the petitions included claims for malicious prosecution and sought

damages. Therefore, the pleadings do not support the argument that they only seek declaratory

and injunctive relief for their state common law tort claims.

       Accordingly, we conclude the trial court should have granted the motion to dismiss under

the election of remedies provision articulated in Texas Civil Practice and Remedies Code

101.106. We sustain Issue Five and reverse and render judgment in the District employees’

favor. Because Issue Five is dispositive as to the McIntyres’ state law claims, we need not

address Issues Six, Seven, or Eight.

            DISMISSAL OF FEDERAL LAW CLAIMS AGAINST MENDOZA:
                            QUALIFIED IMMUNITY

       In Issues Three and Four, Appellants complain that the trial court erred in denying

summary judgment with respect to the federal law claims asserted against Mendoza. Because

the qualified immunity argument in Issue Four is dispositive, we begin by addressing that issue.

                                       Standard of Review

       We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).          Our review is limited to

consideration of the evidence presented to the trial court. Mathis v. Restoration Builders, Inc.,

231 S.W.3d 47, 52 (Tex.App.--Houston [14th Dist.] 2007, no pet.). When a summary judgment

does not state or specify the grounds upon which it relies, we may affirm the judgment if any of

the grounds presented in the summary judgment motion are meritorious. Carr v. Brasher, 776

S.W.2d 567, 569 (Tex. 1989); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d

537, 556 (Tex.App.--San Antonio 2011, no pet.).

       A party moving for traditional summary judgment bears the burden of showing that no

genuine issue of material fact exists and that he is entitled to judgment as a matter of law.

                                               - 22 -
TEX.R.CIV.P. 166a(c).     To determine if the non-movant raises a fact issue, we review the

evidence in the light most favorable to the non-movant, crediting favorable evidence if

reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could

not. See Fielding, 289 S.W.3d at 848, citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005). A defendant who conclusively negates a single essential element of a cause of action or

conclusively establishes an affirmative defense is entitled to summary judgment on that claim.

Frost National Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

                                        Statutory Inquiry

       Section 1983 provides in relevant part: “[e]very person who, under color of any statute ...

subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law . . . .” 42 U.S.C. § 1983 (1994). “The first inquiry in any § 1983 suit,

therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and

laws.’” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).

       Initially we note that the deprivation of a right must be caused by the conduct of a person

acting under the color of state law. Here, Mendoza acted pursuant to Section 25.091(b) of the

Texas Education Code which authorized him “to investigate each case of a violation of the

compulsory school attendance requirements referred to [him].”          See TEX.EDUC.CODE ANN.

§ 25.091(b)(1). There is no dispute that Mendoza initiated his investigation based on a report

that the McIntyres and their children were in violation of the compulsory attendance laws. Nor

is there any dispute that the McIntyres reside within the District. Therefore, the question is

whether Mendoza is shielded from liability.




                                               - 23 -
       Qualified immunity is a judge-made doctrine. The justification for the doctrine is that

public officials performing discretionary functions should be free to act without fear of

retributive suits for damages except when they should have understood that particular conduct

was unlawful. Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).

That awareness depends, in large part, on the extent to which legal rules were clearly established

when the official acted. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d

396 (1982). It follows that an inquiry into the reasonableness of a public official’s conduct must

focus both on what the official did (or failed to do) and on the state of the law at the time of the

alleged act or omission. Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003)(en banc), cert.

denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004); Iacobucci v. Boulter, 193 F.3d

14, 21 (1st Cir. 1999). In the end, the qualified immunity defense should prevail unless the

unlawfulness of the challenged conduct was “apparent” when undertaken.                Anderson v.

Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

       The test for qualified immunity requires the court to engage in a two part inquiry: (1)

whether a public official’s conduct violated a constitutional or statutory right; and (2) whether

the right was “clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, ---

U.S. ---, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011); see also Morgan v. Swanson, 659 F.3d

359, 371-72 (5th Cir. 2011)(en banc). In determining whether a right was clearly established,

courts look to whether the public official’s actions were objectively reasonable in light of the law

at the time of the challenged conduct. See Morgan, 659 F.3d at 370. The purpose of the

qualified immunity doctrine is to shield government officials not only from personal liability, but

from suit as well, “when their actions could reasonably have been believed to be legal.”

Morgan, 659 F.3d at 370; see also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815,



                                               - 24 -
86 L.Ed.2d 411 (1985)(“The entitlement is an immunity from suit rather than a mere defense to

liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.”).

        Courts have discretion to decide which of the two prongs to address first, in the light of

the particular circumstances. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172

L.Ed.2d 565 (2009). Reviewing the second prong (objectively unreasonable conduct vel non )

first is often preferable, as it “comports with [the] usual reluctance to decide constitutional

questions unnecessarily.” [Citation omitted]. Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012).

To satisfy the second prong, the McIntyres had the burden of pointing to “controlling authority -

or a robust consensus of persuasive authority - that defines the contours of the right in question

with a high degree of particularity.” [Internal quotation marks and citations omitted]. Morgan,

659 F.3d at 371-72.        “Where no controlling authority specifically prohibits a defendant’s

conduct, . . . the law cannot be said to be clearly established. . . . [G]eneralizations and abstract

propositions are not capable of clearly establishing the law.” Id. at 372. While there need not be

a decision directly on point, “existing precedent must have placed the statutory or constitutional

question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011).

        Finally, even where the qualified immunity defense is raised in response to a Section

1983 claim in state court, it must still be evaluated under federal, and not state, law. See Robinett

v. Carlisle, 928 S.W.2d 623, 625 (Tex.App.--Fort Worth 1996, writ denied), cert. denied, 522

U.S. 820, 118 S.Ct. 74, 139 L.Ed.2d 33 (1997). Although the test for qualified immunity under

state law is whether the officer was acting in good faith, the test under federal law is one of

objective reasonableness:

        Although the cases sometimes refer to the doctrine of qualified ‘good faith’
        immunity, the test is one of objective legal reasonableness, without regard to
        whether the government official involved acted with subjective good faith.



                                                    - 25 -
        We look to whether a reasonable official could have believed his or her conduct to
        be lawful in light of clearly established law and the information possessed by the
        official at the time the conduct occurred. Thus, qualified immunity protects ‘all
        but the plainly incompetent or those who knowingly violate the law.’

[Citations omitted]. Swint v. City of Wadley, Ala., 5 F.3d 1435, 1441-42 (11th Cir. 1993), cert.

denied, 514 U.S. 1003, 115 S.Ct. 1312, 131 L.Ed.2d 194 (1995); see City of Lancaster v.

Chambers, 883 S.W.2d 650, 655-56 (Tex. 1994).

                                     “Shock the Conscience” Theory

        We now look to whether the McIntyres raised a fact issue regarding Mendoza’s purported

violation of a clearly established federal constitutional right.                 We begin by addressing

Appellants’ assertion that the McIntyres failed to create a fact issue with respect to their

substantive due process claim. The McIntyres rely on a “shock the conscience” theory, claiming

that Mendoza “committed perjury” by filing criminal charges that “he knew to be untrue,” and

by making up a non-existent criminal offense.

        According to the McIntyres, there are “historical examples of this claimed liberty

protection.” As their first “historical example,” of their shock the conscience theory, they rely on

Morris v. Dearborne, 181 F.3d 657 (5th Cir. 1999). In Morris, a teacher deliberately fabricated

sexual abuse charges against a four-year-old student’s father. Morris, 181 F.Ed at 671. The

false charges resulted in a suit by the Texas Department of Protective and Regulatory Services to

permanently terminate the father’s parental rights.7 Id. The court found that the teacher caused

the “destruction of a family based on fabricated evidence.” Id. at 668. Noting the existence of a

“well established constitutional right to family integrity,” the court concluded that the contours

of that right left no doubt that a teacher was not “free to fabricate sexual abuse allegations


7
  The fabricated complaint also led to the father’s loss of employment and the placement of the child into foster
care. Morris, 181 F.Ed at 668.


                                                     - 26 -
against her student’s parents.” Id. at 671-72. The court also found that no teacher could have

believed that such conduct was objectively reasonable. Id. at 675. Therefore, the court denied

summary judgment on qualified immunity grounds and left it to the fact-finder to resolve the

causation issue at trial, by determining the extent to which state officials relied on the teacher’s

misrepresentations in deciding to remove the child from her parents’ custody. Id. at 672-73; see

also Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 412 (5th Cir.

2002)(restating the findings in Morris as in other words, an actual violation of the constitutional

right to family integrity, resulting in a tangible loss, constituted a substantive due process

violation, and noting that a key element of Morris and similar cases was that the government

actor “had removed the child from its family home.”).

       Similarly, in Cummings v. McIntire, 271 F.3d 341, 346 (1st Cir. 2001), the First Circuit

Court of Appeals held that a police officer’s unprovoked and angry shove of a person who asked

for directions while the officer was directing traffic, resulting in severe spinal injury, did not

shock the conscience because, even if the officer unnecessarily used physical force, he did not do

so maliciously and sadistically for the purpose of causing harm. Cummings, 271 F.3d at 345. In

conducting their analysis, the court looked at the facts underlying other substantive due process

claims: Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000)(a student was

blinded in one eye when a coach intentionally struck him in the head with a metal weight);

Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998)(rape by a police officer in

connection with a car stop); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998)(a fifty-

seven day unlawful detention in the face of repeated requests for release); Hemphill v. Schott,

141 F.3d 412, 419 (2d Cir. 1998)(police officers aiding a third-party in shooting the plaintiff);

Johnson v. Glick, 481 F.2d 1028, 1029-30 (2d Cir. 1973)(an intentional assault by a police



                                               - 27 -
officer who struck a pretrial detainee twice in the head and threatened to kill him); and Webb v.

McCullough, 828 F.2d 1151, 1159 (6th Cir. 1987)(a principal forcing his way into a room where

a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping

her). See Cummings, 271 F.3d at 346 (stating, “A look at the facts underlying other substantive

due process claims helps place this case into perspective and reinforces our conclusion that [the

defendant’s] conduct was not of constitutional dimension,” and then listing the above summaries

and case citations).

        Here, the McIntyres failed to meet their burden as none of the alleged conduct shocks the

conscience. The truancy complaints filed by Mendoza alleged violations of specific sections of

the Education Code. The assistant district attorney in charge of truancy cases testified that the

complaints were sufficient to state criminal offenses. He also testified that the complaints did

not contain any false information.

        There is no evidence of any tangible loss or injury to the McIntyres, nor is there any

evidence that Mendoza intended to cause them harm or acted deliberately to injure them. Rather,

the evidence demonstrates that Mendoza possessed at least a good faith belief that he was

complying with his statutory duty to ensure that every child within his jurisdiction attends school

and receives an education. Kinzie v. Dallas County Hospital District, 239 F.Supp.2d 618, 630

(N.D. Tex. 2003)(noting the requirement to prevail on a shock the conscience theory that “the

conduct evince an intent to cause harm, or show a deliberate act to bring about the specific injury

to the plaintiff”).

                                 Fundamental Liberty Interests

        Next, we address the McIntyres assertion that Mendoza violated their fundamental liberty

interests by inquiring about the curriculum they were using in the home, and then by filing the



                                              - 28 -
truancy complaints when they refused to provide him with such information. In Leeper, the

Supreme Court specifically authorized inquiries into the curriculum of home schools.                        See

Leeper, 893 S.W.2d at 440. Specifically, the Court affirmed a portion of the trial court’s

judgment which stated in relevant part:

          This judgment does not preclude the Texas Education Agency, the Commissioner
          of Education or the State Board of Education from suggesting to the public school
          attendance officers lawful methods, including but not limited to inquiry
          concerning curricula and standardized test scores, in order to ascertain if there is
          compliance with the declaration contained in this judgment. However, this
          judgment is not to be interpreted as requiring standardized tests in order for there
          to be compliance with the interpretation made by the court of [§ 21.033(a)(1) ].
          The lawful powers of investigation by public school attendance officers and the
          constitutional rights of persons subject to such investigations are not affected by
          this judgment.
Id.

          Section 25.091(b) of the Education Code vests certain authority in school district

attendance officers. Included is the authority to: (1) investigate each case of a violation of the

compulsory school attendance requirements referred to the attendance officer; (2) monitor school

attendance compliance by each student investigated; (3) make a home visit or otherwise contact

the parent of a student who is believed to be in violation of compulsory school attendance

requirements; and (4) enforce compulsory school attendance requirements by filing truancy

complaints. TEX.EDUC.CODE ANN. § 25.091(b). The McIntyres do not challenge the authority

given to school attendance officers under Section 25.091(b). Instead, they appear to claim a

fundamental right to be free of any state supervision or regulation concerning whatever

education they choose to provide to their children in their home. They provide no support for

such a right, much less sufficient support to show such a right is clearly established.8 Therefore,


8
    The United States has long recognized that states have the power to regulate non-public schools:

          No question is raised concerning the power of the state reasonably to regulate all schools, to
          inspect, supervise and examine them, their teachers and pupils; to require that all children of

                                                        - 29 -
no genuine issue of material fact exists to defeat Mendoza’s qualified immunity defense based on

a violation of the McIntyres’ fundamental liberty interests.

                                          “Class of One” Theory

        In the McIntyres’ third amended petition, they allege an equal protection violation based

on discrimination against them “as a Class of One.” A “class of one” theory is limited to cases

where the evidence demonstrates “the existence of a clear standard against which departures,

even for a single plaintiff . . . could be readily assessed,” as opposed to those situations in which

a government official is “exercising discretionary authority based on subjective, individualized

determinations.” Enquist v. Oregon Department of Agriculture, 553 U.S. 591, 602, 128 S.Ct.

2146, 2153, 170 L.Ed.2d 975 (2008).

        Some forms of state action by their very nature involve discretionary decision-making

based on a vast array of subjective, individualized assessments. In such cases the rule that

people should be treated alike, under like circumstances and conditions is not violated when one

person is treated differently from others, because treating like individuals differently is an

accepted consequence of the discretion granted. In such situations, allowing a challenge based

on the arbitrary singling out of a particular person would undermine the very discretion that such

state officials are entrusted to exercise.

        Here, the evidence does not suggest that the McIntyres were singled out and treated

differently than other, similarly situated, parents. The Juvenile Case Manager for the Justice of

the Peace Court where the truancy complaints were filed testified that since 2006, she had seen


        proper age attend some school, that teachers shall be of good moral character and patriotic
        disposition, that certain studies plainly essential to good citizenship must be taught, and that
        nothing be taught which is manifestly inimical to the public welfare.

Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed.
1070 (1925).


                                                    - 30 -
four or five other cases involving home school situations. According to her, some of the parents

responded to the filing of complaints by providing supplemental information to the court. This

information was then provided to the District Attorney’s Office. All but one of the other home

school cases were dismissed prior to trial. As to the one case that went to trial, the judge allowed

the parents more time to produce documentation demonstrating the validity of their home school.

The parents in that case produced the documentation and the case was dismissed.

       The record also demonstrates that Mendoza was acting within his discretionary,

subjective, decision-making authority.      Section 25.091(b) of the Texas Education Code

authorized him “to investigate each case of a violation of the compulsory school attendance

requirements referred to” him. See TEX.EDUC.CODE ANN. § 25.091(b). The method and scope

of investigation are are not specified in the Code, nor does the Code specify what specific

evidence is necessary to sufficiently demonstrate compliance with the compulsory school

attendance requirements, or an applicable exemption to such requirements. Consequently, the

investigation and ultimate decision to file truancy complaints were within Mendoza’s discretion.

       It is in this respect that Leeper provides guidance.        While Leeper precludes using

standardized test scores as a determining factor in deciding whether the McIntyres’ home school

fell within the private or parochial school exemption, nothing in Leeper -- or the Education Code

for that matter -- precludes an attendance officer from requiring the McIntyres to produce

evidence regarding their chosen curriculum. Mendoza’s actions fell within his discretion and

there is no evidence that he exceeded his authority or that the McIntyres were isolated as a “class

of one.” Thus, the McIntyres’ equal protection claims against Mendoza are subject to qualified

immunity.




                                               - 31 -
                                            “Free Exercise of Religion”

         Lastly, we address the portion of the McIntyres’ petition seeking relief in connection with

their “free exercise of religion” under the First Amendment. In Wisconsin v. Yoder, 406 U.S.

205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Old Order Amish and the Conservative Amish

Mennonite Church challenged a Wisconsin compulsory school attendance statute which required

children to attend school until the age of sixteen.9 Yoder, 406 U.S. at 207. The plaintiffs argued

that they had a First Amendment right to withhold their children from any type of institutional

school beyond the eighth grade. Yoder, 406 U.S. at 213. The Supreme Court reiterated that

there “is no doubt as to the power of a State, having a high responsibility for education of its

citizens, to impose reasonable regulations for the control and duration of basic education.” Id.

The court conducted a balancing test and ultimately concluded that, based on the unique facts of

the case, the statute impermissibly infringed on the free exercise of religion without a compelling

state interest. Id. at 234. Yoder is distinguishable because of the unique freedom of religion

issues presented. In fact, the situation was so exceptional that the same treatment has never been

extended to any other individual or religious group.                  See Combs v. Homer-Center School

District, 540 F.3d 231, 249-52 (3rd Cir. 2008); Mozert v. Hawkins County Board of Education,




   9
      While the Amish did not object to elementary education because their children must have basic skills to read
the Bible, to be good farmers and citizens, and to deal with non-Amish people, they did object to formal high school
education:

   [N]ot only because it places Amish children in an environment hostile to Amish beliefs with increasing
   emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and
   ways of the peer group, but also because it takes them away from their community, physically and
   emotionally, during the crucial and formative adolescent period of life. During this period, the children must
   acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the
   adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has
   learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall
   within the category of those best learned through example and ‘doing’ rather than in a classroom.

Yoder, 406 U.S. at 211, 92 S.Ct. at 1531.

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827 F.2d 1058, 1067 (6th Cir. 1987)(noting that “Yoder rested on such a singular set of facts that

we do not believe it can be held to announce a general rule”).

        No parents have ever prevailed in any reported case on a theory that they have an

absolute constitutional right to educate their children in the home, completely free of any state

supervision, regulation, or requirements. In post-Yoder opinions, the Supreme Court has held

that “a law that is neutral and of general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect of burdening a particular religious

practice.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217,

2226, 124 L.Ed.2d 472 (1993); Employment Division, Department of Human Resources of

Oregon v. Smith, 494 U.S. 872, 879, 890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

        The McIntyres have produced no evidence that they are similarly situated to the Old

Order Amish in Yoder. They have failed to raise a fact issue that a sincerely held religious belief

was substantially burdened.

        They do not have an “absolute constitutional right to home school.” See Jonathan L. v.

Superior Court, 165 Cal.App. 4th 1074, 81 Cal.Reptr.3d 571, 592 (Cal.App. 2008). Instead, they

have a right to home school their children, but a home school will only meet the private or

parochial exemption from the compulsory school attendance laws if it meets the criteria set out

in Leeper.

        Based on the foregoing analysis, we conclude that the McIntyres failed to raise a fact

issue with respect to the violation of a clearly established constitutional right. Because Mendoza

is entitled to qualified immunity, the trial court erred in denying his motion for summary

judgment.10 We sustain Issue Four and reverse and render judgment in favor of Mendoza on this


10
    We also note, that with respect to the McIntyres’ malicious prosecution claim under Section 1983, they have
failed to state a cause of action.

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issue. Having determined that the McIntyres’ federal claims against Mendoza should have been

dismissed based on qualified immunity, we need not address the’ absolute immunity claims in

Issue Three.

     OBJECTIONS TO THE MCINTYRES’ SUMMARY JUDGMENT EVIDENCE

       Finally, in Issue Nine, Appellants maintain that the trial court erred in overruling several

objections to the affidavits of Laura McIntyre. Because we have found in favor of Appellants on

the issues above, we need not address their arguments in Issue Nine. Having sustained Issues

One, Two, Four, and Five, we reverse and render judgment accordingly. The cause is remanded

to the trial court for consideration of the claims remaining consistent with our opinion and

judgment.


August 6, 2014
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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