                                    NO. 07-06-0303-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   MAY 29, 2008
                          ______________________________

                      VALERIANO HERRERA and JOSE BRUNO,

                                                                        Appellants

                                              v.

                  EAGLE PASS INDEPENDENT SCHOOL DISTRICT,

                                                                        Appellee
                        _________________________________

           FROM THE 293RD DISTRICT COURT OF MAVERICK COUNTY;

             NO. 04-12-20528-MCB; HON. CYNTHIA MUNIZ, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Valeriano Herrera and Jose Bruno (the employees) appeal from a final summary

judgment dismissing “with prejudice” their claims against Eagle Pass Independent School

District (Eagle Pass or school district). Via two issues, the employees contend that the trial

court erred by granting both the traditional and no-evidence summary judgments on their

claims of retaliation. We reverse and remand in part and affirm in part.
        According to the record before us, the employees sued Eagle Pass for violating their

constitutional rights arising under §8 and §27 of article I of the Texas Constitution. The

purported rights at issue were those prohibiting the school district from retaliating against

them for filing a grievance. Eagle Pass moved for summary judgment. In attacking the §8

retaliation claim, it endeavored to show that the employees were not the victim of

retaliation. However, in attacking the §27 claim, it argued that they had not been denied

any right to remonstrance, to due process, or to petition the government. Yet, the

employees did not accuse Eagle Pass of denying them of any such §27 rights. More

importantly, Eagle Pass said nothing in its motion about the viability of the purported

retaliation claim. Nonetheless, the trial court granted summary judgment and dismissed

all the claims asserted by the employees against the school district.

        It is beyond dispute that the motion for summary judgment must state the grounds

upon which the movant relies. TEX . R. CIV. P. 166a(c). Similarly indisputable is the rule

that a summary judgment cannot exceed the grounds or relief unmentioned in the motion.

IBP, Inc. v. Klumpe, 101 S.W.3d 461, 468 (Tex. App.–Amarillo 2001, pet. denied). Therein

lies the problem here.

        The motion for summary judgment did not address the employees’ retaliation claim

founded on §27, article I of the Texas Constitution.1 Rather, Eagle Pass argued that the

employees were not denied any right to petition the government, which was not the


        1
          Eagle Pass did state in its m otion that there was no evidence that it “deprived Plaintiffs of any rights
afforded them under Article I, Section 27.” If that provision was read alone, it could arguably be said to
encom pass any and all rights arising under that provision, including those against retaliation. Yet, we cannot
ignore the context of the wording, and that context focused on topics other than retaliation. Nor does Eagle
Pass argue at bar that the ground should be read as including the issue of retaliation. Thus, when accorded
their plain interpretation as garnered from the entire instrum ent, the grounds asserted by Eagle Pass were
incom plete when tested against the scope of the sum m ary judgm ent granted by the trial court.

                                                        2
substance of their cause of action. Thus, the trial court could not adjudicate the §27

retaliation claim via summary judgment since the matter was not before it.

       Consequently, we reverse that portion of the summary judgment dismissing “with

prejudice” the claim of retaliation founded upon §27, art. I of the Texas Constitution. The

remainder of the summary judgment is affirmed.



                                                Brian Quinn
                                                Chief Justice




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