                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-11-00127-CV

JOYSTENE MOORE,
                                                             Appellant
v.

MICHELLE MILLER, AS NEXT FRIEND
FOR STACIE WOODBERRY,
                                                             Appellee


                            From the 335th District Court
                               Burleson County, Texas
                                Trial Court No. 25,557


            CONCURRING AND DISSENTING OPINION

       There are claims made in some cases for which the jurisdictional facts are

inextricably intertwined with the merits of the claim and, therefore, cannot be resolved

by a pretrial plea to the jurisdiction. This case involves one such claim. And there are

also cases in which some claims, but not all claims, can be disposed of by a plea to the

jurisdiction. This is also one of those cases.

       The fundamental disputed issue in this case, around which the plea to the

jurisdiction revolves, is whether the incident out of which this suit arises was simply the

implementation of a policy or rule of the school, or whether it was discipline for
violation of a rule. There is a very limited waiver of sovereign immunity and the

exhaustion of remedies requirements if the facts establish excessive force or negligence

resulting in bodily injury while administering discipline.

        The controlling factual issue seems to be whether Moore’s action was the result

of Moore’s unhappiness or dissatisfaction with the work that Stacie was doing leading

to imposition of discipline, or whether Stacie was not ready to work, in essence the

equivalent of doing no work, and thus was being moved from the table according to the

policy or rule. This is a rather fine distinction but, nevertheless, an important one.

        Specifically, it appears that there is a question of whether the rule or the policy of

the school was that you could not occupy a seat at the table if you were not doing your

work. If such was the policy, it would not necessarily be discipline to keep a student

from sitting at the table if they were not working. Rather, it is implementation of the

school policy or rule.1

        Moore, as I understand her arguments, contends that she was implementing

school policy within the confines of the discretion afforded her as a professional

employee of a school district. Thus, Moore contends that Miller’s pleadings are not for

an act of excessive force or negligence in the course of disciplining Stacie that resulted

in personal injury. If Moore is correct, that what she was doing was not discipline, then

the exception in the Board Policy to the requirement to exhaust administrative remedies

for IDEA students, see 20 USCS §§ 1400 et seq., does not apply and Miller has failed to

1 I also note there is a factual dispute which is irrelevant to this proceeding because we must accept the
pleading as true. The fact question is whether Moore forcefully removed Stacie from the chair and onto
the floor or whether, after Moore had moved the chair to allow Stacie to move away from the table, Stacie
flopped to the floor expressing her own displeasure at having to leave the table. This is a question of fact
about what Moore did, or the actual event; a question of “what happened.” The question about our
jurisdiction is of “why it happened;” policy or discipline.

Moore v. Miller                                                                                      Page 2
exhaust her administrative remedies.        This would result in a dismissal of Miller’s

claims. Further, also based on the determination that what Moore was doing was not

discipline, the exception to immunity for a professional employee of a school district

does not apply; in which case, Moore is immune. TEX. EDUC. CODE ANN. § 22.0511(a)

(West Supp. 2011).

       Because Miller has adequately alleged that Moore’s actions were disciplinary in

nature, and because the trial court must accept that allegation as true, the trial court did

not err in refusing to dismiss Miller’s claim for damages resulting from excessive force

in the discipline of Stacie. I, therefore, concur in the Court’s judgment to that extent.

       But Miller has also asserted claims for ordinary negligence and simple assault

which are independent of her claim for excessive force in the discipline of Stacie. To the

extent that Miller’s allegations are a claim that Moore was negligent or committed an

assault on Stacie, as opposed to using excessive force in the discipline of Stacie, Moore

is immune and the claim should be dismissed. See Thomas v. Long, 207 S.W.3d 334, 338-

339 (Tex. 2006). This is because Miller has not exhausted her administrative remedies

and also because Moore is immune, as a professional employee of a school, for

negligence or assault resulting in injury to Stacie. Therefore, I would order that Miller’s

claims for negligence and assault are dismissed. Because the Court does not order these

claims dismissed, I respectfully dissent.



                                            TOM GRAY
                                            Chief Justice

Concurring and dissenting opinion delivered and filed February 1, 2012


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