                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00127-CV

JOYSTENE MOORE,
                                                             Appellant
v.

MICHELLE MILLER, AS NEXT FRIEND
FOR STACIE WOODBERRY,
                                                             Appellees



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


                           MEMORANDUM OPINION


       In this interlocutory appeal, appellant, Joystene Moore, complains about the trial

court’s denial of her plea to the jurisdiction. In two issues, Moore contends that the trial

court should have granted her plea to the jurisdiction because appellee, Michelle Miller,

as next friend for Stacie Woodberry, failed to exhaust her administrative remedies and

because Moore, a professional employee of a school district, was immune from liability.

We affirm.
                                             I.       BACKGROUND

          Moore was an eighteen-year employee with the Somerville Independent School

District who worked as a teacher’s aide, assisting special-needs children. The incident

giving rise to this lawsuit occurred on December 18, 2007, and involved Stacie, who

suffers      from     Rubenstein-Taybi         Syndrome,       which     is   characterized     by      facial

abnormalities, broad thumbs, gait issues, short stature, and mental disability.

          In her appellate brief, Moore describes the incident as follows: “While in study

skills class, Stacie refused to follow classroom rules which required her to perform

schoolwork if she wanted to continue to sit at the table. Moore gave Stacie the option of

performing schoolwork at the table or to move to a sitting position on the floor or to

stand. Stacie chose to sit on the floor.”1 However, in her third amended petition, Miller

alleged that:

                 Ms. Moore, dissatisfied with Stacie’s work, approached Stacie’s
          chair unexpectedly and aggressively dislodged her from it in a
          disciplinary measure. She threw Stacie hard to the ground.

                 Traumatized as a result of the incident, Stacie (who is unable to
          speak due to her mental deficiencies) began hitting the floor in pain. Ms.
          Moore, while viewing this, asserted laughingly, “Keep hitting the floor; it
          isn’t hurting me,” and “That’s what happens to girls who won’t do their
          work.”

                   Stacie received no medical attention from Ms. Moore or from any


1   In her affidavit, Moore provided the following description of the incident:

          On December 18, 2007, I was teaching Stacie Woodberry. We were sitting at the table.
          Stacie wasn’t ready to work, so I asked her if she would like to stand or if she would like
          to sit. It was a classroom rule that if a student was not ready to work, the student could
          not remain seated at the table. She signed she would sit. I asked her to raise up. She
          raised up out of the chair. I moved the chair to the side. Stacie sat on the floor, which
          was a typical thing that she did.

Moore v. Miller                                                                                         Page 2
       school staff immediately following the incident. It was not until she
       arrived home agitated, swollen[,] and crying that her mother rushed her
       without hesitation to the emergency room, where Stacie was diagnosed
       with a dislocated knee, torn ligaments and tendons, damage to the tibia
       (resulting in the insertion of pins and screws), and deep tissue bruising—
       all of which were the result of great force.

              Furthermore, Stacie has become uncharacteristically combative,
       uncommunicative, and distraught since the incident. This is reflected,
       among other items, by Stacie’s wetting herself regularly—at home and at
       school—and by her inability to sleep at night; instead, she wakes in
       violent, uncontrollable fits causing severe disruption in her home.

Miller asserted claims of negligence, assault, and negligent discipline against Moore.

       Moore filed a plea to the jurisdiction asserting, among other things, that: (1)

Miller failed to exhaust administrative remedies provided in the Somerville

Independent School District Student Rights and Responsibilities FNG (LOCAL) (“Board

Policy”), see TEX. EDUC. CODE ANN. § 22.0514 (West 2006) (providing that “[a] person

may not file suit against a professional employee of a school district unless the person

has exhausted the remedies provided by the school district for resolving the

complaint”); and (2) she is immune from liability because she was a professional

employee of a school district and the complained-of acts occurred within the scope of

the duties of her position of employment.

       Miller’s response to Moore’s plea to the jurisdiction asserted that: (1) she did

exhaust her administrative remedies by corresponding to and complaining to the school

district, but she was not required to comply with the process because the situation fell

within an exception to the grievance process allowing for complaints regarding the

discipline of a student with a disability within the scope of the Individuals with


Moore v. Miller                                                                     Page 3
Disabilities Education Act (“IDEA”) to bypass the grievance process; and (2) Moore is

not entitled to statutory immunity because her actions fell within the exception

provided in section 22.0511(a) of the Education Code, which prohibits immunity for

complaints regarding the use of excessive force or negligence in the disciplining of a

student. See id. § 22.0511(a) (West Supp. 2011).

       The trial court denied Moore’s plea to the jurisdiction. This interlocutory appeal

ensued.    See TEX. R. APP. P. 28.1(a); see also TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(8) (West Supp. 2011).

                              II.    PLEA TO THE JURISDICTION

       A plea to the jurisdiction is a dilatory plea used to defeat a cause of action

without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject-matter

jurisdiction. Id. Whether the trial court has subject-matter jurisdiction and whether the

pleader has alleged facts that affirmatively demonstrate the trial court’s subject-matter

jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

       The plaintiff has the burden to plead facts affirmatively showing that the trial

court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993). We construe the pleadings liberally in favor of the pleader, look to the pleader’s

intent, and accept as true the factual allegations in the pleadings. See Miranda, 133

S.W.3d at 226, 228. If a plea to the jurisdiction challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties when necessary to resolve

Moore v. Miller                                                                        Page 4
the jurisdictional issues raised, as the trial court is required to do, even those facts

which may implicate the merits of the cause of action. Id. at 227.

       A trial court’s review of a plea to the jurisdiction challenging the existence of

jurisdictional facts mirrors that of a traditional motion for summary judgment. Id. at

228; see TEX. R. CIV. P. 166a(c). The governmental unit is required to meet the summary

judgment standard of proof for its assertion that the trial court lacks jurisdiction.

Miranda, 133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff

is then required to show that there is a disputed material fact regarding the

jurisdictional issue. Id. If the evidence creates a fact question regarding jurisdiction, the

trial court must deny the plea to the jurisdiction and leave its resolution to the fact

finder. Id. at 227-28. But, if the evidence is undisputed or fails to raise a fact question

on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter

of law. Id. at 228. “In considering this evidence, we ‘take as true all evidence favorable

to the nonmovant’ and ‘indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor.’”      City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009)

(quoting Miranda, 133 S.W.3d at 228).

                     III.    EXHAUSTION OF ADMINISTRATIVE REMEDIES

       In her first issue, Moore alleges that Miller did not exhaust her administrative

remedies, as outlined in the Board Policy. See In re Entergy Corp., 142 S.W.3d 316, 321-22

(Tex. 2004) (holding that failure to exhaust requisite administrative remedies before

filing suit results in lack of subject-matter jurisdiction in trial court).      Moore also

contends that the ninth exception to the Board Policy does not apply because Miller

Moore v. Miller                                                                         Page 5
failed to plead or provide evidence establishing entitlement to the exception.

       The Board Policy, attached as evidence to Moore’s plea, establishes formal and

informal procedures for handling “all student and parent complaints.”            It contains

twelve exceptions, including the following: “9. Complaints concerning identification,

evaluation, educational placement, or discipline of a student with a disability within the

scope of the Individuals with Disabilities Education Act [“IDEA”] . . . .” The IDEA

defines a “[c]hild with a disability” as a child “with intellectual disabilities, hearing

impairments (including deafness), speech or language impairments, visual impairments

(including blindness), serious emotional disturbance . . . orthopedic impairments,

autism, traumatic brain injury, other health impairments, or specific learning

disabilities; and . . . who, by reason thereof, needs special education and related

services.” 20 U.S.C. § 1401(3)(A). In her third amended petition, Miller pleaded that

“Stacie is a special education student at Somerville High School who is mentally

incapacitated; she has been clinically diagnosed with Rubenstein-Taybi Syndrome

(RSTS), a well-delineated malformation syndrome characterized by facial abnormalities,

broad thumbs, broad great toes, short stature, and mental retardation”—a

characterization that is not disputed by Moore. Miller’s description of Stacie’s disability

appears to fall within the scope of the IDEA. See id. Miller also filed an affidavit in

which she averred that Stacie’s “disability falls within the scope of the Individuals with

Disabilities Education Act … .” Moore did not file any evidence pertaining to Stacie’s

disability or to whether it falls within the IDEA’s scope; she simply denies that the ninth




Moore v. Miller                                                                       Page 6
exception applies and asserts that Miller failed to plead the exception.2 But a defendant

cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a

fact issue. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

        As noted above, we must liberally construe and accept as true the factual

allegations in Miller’s pleadings. See Miranda, 133 S.W.3d at 226, 228. We also take as

true all evidence favorable to Miller and indulge every reasonable inference and resolve

any doubts in her favor. City of Waco, 298 S.W.3d at 622. In applying this standard of

review, we conclude that Miller pleaded sufficient jurisdictional facts and presented

some evidence demonstrating that a disputed fact question exists on whether the ninth

exception applies and that Miller was thus not required to exhaust her administrative

remedies. Accordingly, we cannot say that the trial court erred in denying Moore’s plea

to the jurisdiction on the basis of Miller’s alleged failure to exhaust her administrative

remedies. Moore’s first issue is overruled.

                                   IV.     PROFESSIONAL IMMUNITY

        In Moore’s second issue, she contends that the trial court erroneously denied her

plea to the jurisdiction because she had professional immunity. Section 22.0511(a) of

the Education Code specifically provides that:

        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

2 Moore cites no authority that Miller was required to plead that she had exhausted her administrative
remedies or that she was excepted from exhausting her administrative remedies. Cf. Ogletree v. Glen Rose
ISD, 314 S.W.3d 450, 454 (Tex. App.—Waco 2010, pet. denied) (addressing on appeal plaintiff’s assertion
of futility exception to exhaustion requirement); Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 349 (Tex.
App.—Eastland 2008, no pet.) (“If a party exhausts its administrative remedies but fails to properly or
adequately plead this, the challenge is not to the trial court’s jurisdiction but to the adequacy of the
plaintiff’s pleading.”).

Moore v. Miller                                                                                    Page 7
       position of employment and that involves the exercise of judgment or
       discretion on the part of the employee, except in circumstances in which a
       professional employee uses excessive force in the discipline of students or
       negligence resulting in bodily injury to students.

TEX. EDUC. CODE ANN. § 22.0511(a). Accordingly, immunity afforded by this statute

requires that the person asserting immunity establish that:         (1) he or she is a

professional employee of a school district; (2) he or she is acting incident to or within

the scope of duties; (3) the act involves the exercise of judgment or discretion; and (4)

the act does not fall within the stated statutory exceptions. See LeLeaux v. Hamshire-

Fannett Indep. Sch. Dist., 835 S.W.2d 49, 52-53 (Tex. 1992); Robinson v. Brannon, 313

S.W.3d 860, 865 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Here, the parties’

dispute concerns the fourth element: whether Moore’s actions fell within the exception

pertaining to the use of excessive force in the disciplining of a student or negligence

resulting in bodily injury to a student.

       As noted earlier, Miller pleaded negligence, assault, and negligent discipline

causes of action. In her pleadings, Miller described the incident as Moore dislodging

Stacie from her chair and throwing her to the ground because Moore was dissatisfied

with Stacie’s work. As a result of Moore’s alleged actions, Stacie was diagnosed with

severe injuries, including a dislocated knee, torn ligaments and tendons, damage to her

tibia, and deep tissue bruising. Miller pleaded sufficient jurisdictional facts that Moore

may have used excessive force in the disciplining of Stacie or that Moore’s negligence

resulted in bodily injury to Stacie.

       Moore argues that Miller did not claim that Moore used physical force on Stacie


Moore v. Miller                                                                      Page 8
or that Moore’s act was part of some discipline.       However, in her third amended

petition, Miller specifically stated that: “Ms. Moore, dissatisfied with Stacie’s work,

approached Stacie’s chair unexpectedly and aggressively dislodged her from it in a

disciplinary measure.     She threw Stacie hard to the ground.”          These pleadings

adequately allege that Moore used physical force on Stacie as a part of discipline. We

conclude that Miller pleaded sufficient jurisdictional facts to demonstrate that Moore’s

alleged actions fall within the excessive-force and negligence exceptions to section

22.0511(a). We thus cannot say that the trial court erred in denying Moore’s plea to the

jurisdiction on the basis of Miller’s pleadings.

       Pointing to her own affidavit (see footnote 1), Moore also disputes the allegation

that she dumped Stacie from a chair. Miller filed several affidavits with her response to

Moore’s plea to the jurisdiction that, at the very least, create a material fact issue with

regard to the exceptions to professional immunity.        In particular, James Keith, an

individual who was in the class and witnessed the incident, averred that he saw Moore

forcefully grab the back of Stacie’s chair and dump her on the floor, causing Stacie to

experience “a lot of pain even though she is not able to express it.” The affidavits of

Kristine Washington and Torian Spencer, two other witnesses, offered similar

descriptions of the incident.

       Because we take as true all evidence favorable to Miller, we conclude that she

presented some evidence demonstrating that a disputed fact question exists on whether

Moore’s alleged conduct comes within the excessive-force and negligence exceptions to

her professional immunity under section 22.0511(a). Moore’s second issue is overruled.

Moore v. Miller                                                                      Page 9
                                    V.     CONCLUSION

       Because we have overruled both of Moore’s issues on appeal, we affirm the trial

court’s order denying Moore’s plea to the jurisdiction.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring and dissenting)
Affirmed
Opinion delivered and filed February 1, 2012
[CV06]




Moore v. Miller                                                                Page 10
