                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00419-CV

LAUREN MCPHERSON AND CHRIS LANGSTON,
                                 Appellants
v.

MATT WYLIE, INDIVIDUALLY AND AS
NEXT FRIEND OF H.W., A MINOR,
                                                           Appellee


                           From the 66th District Court
                               Hill County, Texas
                              Trial Court No. 52540


                          CONCURRING OPINION


      A plaintiff is the master of their own pleadings. In this proceeding, the defendants

filed a plea to the jurisdiction contending they are professional employees of Blum

Independent School District, acting in the course and scope of their employment and thus

have the immunity provided by Texas Education Code Section 22.051. It is important to

note that in taking this action, the defendants did not move to substitute their alleged

employer, Blum ISD, pursuant to Texas Civil Practice and Remedies Code Section
101.106(f) into the suit as the defendant.

       The plaintiff responded to the plea to the jurisdiction and clarified his pleading.

The plaintiff asserts he is suing the defendants in their individual capacity for negligence

and does not allege that the defendants were acting in the course and scope of their duties

as employees of the school district. As such, I do not believe we should discuss any issue

regarding the immunity provisions of the Education Code in this appeal of a plea to the

jurisdiction that was denied. There may be a time and place when the plaintiff, the

defendants, the trial court, and, eventually, this Court have to address the issue of what

happens if one of the parties establishes the defendants are Blum ISD employees and

were acting in the course and scope of their employment and how the immunity in the

Education Code and the election of remedies in the Civil Practice and Remedies Code

may impact the parties going forward. But this proceeding is not that time and place.

       On the pleadings and evidence before the trial court, the trial court did not err in

denying the plea to the jurisdiction, and I concur in that analysis and holding in the

judgment of the Court. I find the Court’s analysis and discussion of immunity under

Texas Education Code Section 22.0511, which applies only if the suit is against

professional employees of a school district for actions in the course and scope of

employment, unnecessary and do not join it.




                                             TOM GRAY
                                             Chief Justice
McPherson v. Wylie                                                                    Page 2
Concurring opinion issued and filed December 14, 2016




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