Attorneys for La Joya ISD, Board President Irene Garcia and HR department heads claim legal immunity and request Federal Judge Randy Crane dismiss Benavides et al. v. La Joya ISD et al.
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Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION ROSENDO BENAVIDES, § YVONNE BENAVIDES, § KATIE CEDILLO, JUAN CERDA, § RODOLFO CERDA, JR., § SERGIO FLORES, § ROSALVA FUENTES, § LEONEL GARZA, JR. § MARIA LANDEZ, ARTURO RODRIGUEZ § MARTHA ROMERO, § HERMELINDA SALINAS, § JUAN L. SALINAS, OSCAR SALINAS, § HECTOR SOSA AND ANTONIO URESTI § Plaintiffs § § vs. § CIVIL ACTION NO. 7:11-cv-260 § LA JOYA INDEPENDENT SCHOOL § DISTRICT, ISMAEL “KINO” FLORES, § INDIVIDUALLY, ADRIANA VILLARREAL, § INDIVIDUALLY, RICARDO VILLARREAL, § INDIVIDUALLY, IRENE M. GARCIA, § INDIVIDUALLY AND IN HER CAPACITY § AS BOARD PRESIDENT FOR § THE LA JOYA INDEPENDENT § SCHOOL DISTRICT § Defendants § DEFENDANTS, LA JOYA INDEPENDENT SCHOOL DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT’S 12(b)(6) MOTION TO DISMISS AND TO STAY DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT: NOW COME, Defendants, LA JOYA INDEPENDENT SCHOOL DISTRICT, (hereinafter, “the Defendant DISTRICT”), ADRIANA VILLARREAL, Case 7:11-cv-00260 Document 16 Filed in TXSD on 09/16/11 Page 1 of 17
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION ROSENDO BENAVIDES, § YVONNE BENAVIDES, § KATIE CEDILLO, JUAN CERDA, § RODOLFO CERDA, JR., § SERGIO FLORES, § ROSALVA FUENTES, § LEONEL GARZA, JR. § MARIA LANDEZ, ARTURO RODRIGUEZ § MARTHA ROMERO, § HERMELINDA SALINAS, § JUAN L. SALINAS, OSCAR SALINAS, § HECTOR SOSA AND ANTONIO URESTI § Plaintiffs § § vs. § CIVIL ACTION NO. 7:11-cv-260 § LA JOYA INDEPENDENT SCHOOL § DISTRICT, ISMAEL “KINO” FLORES, § INDIVIDUALLY, ADRIANA VILLARREAL, § INDIVIDUALLY, RICARDO VILLARREAL, § INDIVIDUALLY, IRENE M. GARCIA, § INDIVIDUALLY AND IN HER CAPACITY § AS BOARD PRESIDENT FOR § THE LA JOYA INDEPENDENT § SCHOOL DISTRICT § Defendants §
DEFENDANTS, LA JOYA INDEPENDENT SCHOOL DISTRICT,
ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT
SCHOOL DISTRICT’S 12(b)(6) MOTION TO DISMISS AND TO STAY DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT: NOW COME, Defendants, LA JOYA INDEPENDENT SCHOOL DISTRICT,
(hereinafter, “the Defendant DISTRICT”), ADRIANA VILLARREAL,
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INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, and IRENE M.
GARICA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR
THE LA JOYA INDEPENDENT SCHOOL DISTRICT, (hereinafter sometimes
referred to as the “the Individual Defendants”) and file this their 12(b)(6) Motion
to Dismiss and To Stay Discovery and would show the Court the following:
I. PROCEDURAL HISTORY
This action was commenced on August 16, 2011, in the 370th Judicial
DISTRICT Court of Hidalgo County, Texas as Cause No. C-2243-11-G.
Defendants were served with Plaintiffs’ Original Petition, Application for
Temporary Restraining Order and Request for Temporary and Permanent
Injunctions on August 16, 2011. Plaintiffs asserted claims for violations of their
constitutional rights, pursuant to the First and Fourteenth Amendments to the
Constitution of the United States and the provisions of the Constitution and
laws of the State of Texas in Plaintiffs’ Original Petition, Application for
Temporary Restraining Order and Request for Temporary and Permanent
Injunctions. Additionally, Plaintiffs asserted claims for intentional infliction of
emotional distress and civil conspiracy.
On August 26, 2011 counsel for Plaintiffs filed the Original Petition in
Intervention of Jessica Ochoa, Maricela Acevedo, Aurora Garza and Veronica L.
Garza, in the State action which identified Jessica Ochoa, Maricela Acevedo,
Aurora Garza and Veronica L. Garza as additional interested parties. These
additional Plaintiffs asserted the identical claims asserted in Plaintiffs’ Original
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Petition. Defendants were served with the Original Petition in Intervention on
August 26, 2011. On that same date the Defendant DISTRICT electronically
filed with the Hidalgo County DISTRICT Clerk its Notice of Removal to Plaintiffs
in the State action in Cause No. C-2243-11-G. Thereafter, the Defendant
DISTRICT also electronically filed in the State action its Notice to DISTRICT
Court Clerk of Filing of Notice of Removal. Additionally, the Notice of Removal,
Certificate of Filing, Civil Cover Sheet, and Joinder in Removal were filed in the
instant cause on August 26, 2011 and served on all counsel of record.
On September 6, 2011 the Defendant DISTRICT’s Motion for Leave to File
Supplemental Notice of Removal and Supplemental Notice of Removal were filed
with the Court requesting that the Court take notice of Jessica Ochoa, Maricela
Acevedo, Aurora Garza and Veronica L. Garza as additional interested parties
as identified by counsel for Plaintiffs in the Original Petition in Intervention.
On September 9, 2011 the Defendant DISTRICT’s Motion for Leave to File
Unopposed Supplemental Notice of Removal and the Unopposed Supplemental
Notice of Removal were filed with the Court requesting that the Court take
notice of Jessica Ochoa, Maricela Acevedo, Aurora Garza and Veronica L. Garza
as additional interested parties as identified by counsel for Plaintiffs in the
Original Petition in Intervention.
On September 12, 2011 the Court entered the Order Granting Unopposed
Motion for Leave to File Supplemental Notice of Removal.
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II. MOTION TO DISMISS STANDARD
This Court is well-versed in the standards that must be adhered to in
order to grant such a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
III. ARGUMENTS AND AUTHORITY 1. PLAINTIFFS CANNOT MAINTAIN THEIR FEDERAL CONSTITUTIONAL CLAIMS
UNDER SECTION 1983 AGAINST THE DEFENDANT DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, AND IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT.
To state a claim under Section 1983, Aa plaintiff must (1) allege a
violation of a right secured by the Constitution or laws of the United States and
(2) demonstrate that the alleged deprivation was committed by a person acting
under color of state law.@ Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874
(5th Cir. 2000). Under Section 1983, a local governmental entity, such as a
school DISTRICT, may be held liable only for acts for which it is actually
responsible. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998).
Therefore, to sustain liability against a school DISTRICT under Section 1983,
Plaintiffs must point to more than the actions of an employee; they must
identify a policy maker1 with final policy making authority and a policy that is
1Whether a particular official has "final policy-making authority" is a question of state law. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). In Texas and the Fifth Circuit, it is clear that the final policy-making authority in an independent school DISTRICT rests with the DISTRICT's board of trustees. Jett v. Dallas Indep. School Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).
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the Amoving force@ behind the alleged constitutional violation. Meadowbriar
Home for Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996).
In this case, Plaintiffs have failed to even allege the existence of a policy,
practice or custom attributable to the Board of Trustees that led to the
deprivation of Plaintiffs’ rights under the federal constitution. Stated
differently, Plaintiffs’ cursory allegations against the DISTRICT clearly fall short
of the type of conduct required to support a Section 1983 claim against the
DISTRICT and, consequently, their claims should be dismissed, as a matter of
law.
2. PLAINTIFFS CANNOT MAINTAIN THEIR SECTION 1983 CLAIMS AGAINST DEFENDANT IRENE M. GARCIA, IN HER OFFICIAL OR REPRESENTATIVE CAPACITY AS A MATTER OF LAW.
Notwithstanding the foregoing, Defendant, IRENE M. GARCIA maintains
that the Court should nonetheless dismiss Plaintiffs’ official or representative
capacity claims because these claims are not only redundant, but these claims
have no independent legal significance. See Bluitt v. Houston Indep. Sch. Dist.,
236 F.Supp.2d 703, 727 (S.D.Tex. 2002). It is well-established that a Section
1983 suit against a state official in his official capacity is a suit against the
official=s office, and, therefore, a suit against the State itself. U.S. ex rel. Adrian
v. Regents of Univ. Of Cal., 363 F.3d 398, 402 (5th Cir. 2004). In Regents of
Univ. of Cal., the Fifth Circuit cited to the Supreme Court=s decision in
Kentucky v. Graham, 473 U.S. 159 (1985), in which the Supreme Court
explained that “[o]fficial capacity suits . . . ‘generally represent only another
way of pleading an action against an entity of which an officer is an agent.’”
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Graham, 473 U.S. at 165 (quoting Monell v. N.Y. Dep=t of Soc. Services, 436 U.S.
658, 690 n.55 (1978)). As a consequence, A[a]s long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.@ Id. at 166
(citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). The Supreme Court
further noted that A[t]here is no longer a need to bring official-capacity actions
against local government officials, for under Monell, local government units can
be sued directly for damages and injunctive or declaratory relief.@ Id. at 167
n.14. Since Plaintiffs assert the same federal constitutional claims against the
Defendant DISTRICT that they assert against Defendant, IRENE M. GARICA in
HER OFFICIAL CAPACITY, the Court should dismiss these claims as
duplicative and of no independent legal significance. See Wakat v. Montgomery
County, 471 F.Supp.2d 759, 768 (S.D.Tex. 2007).
3. THE INDIVIDUAL DEFENDANTS, IN THEIR INDIVIDUAL CAPACITIES, AS TO THE SECTION 1983 CLAIMS, ENJOY THE PROTECTION OF QUALIFIED IMMUNITY AND ARE SHIELDED FROM LIABILITY AND FROM DEFENDING AGAINST A LAWSUIT, AND ARE THEREFORE ENTITLED TO STAY DISCOVERY.
Notwithstanding the foregoing, the Individual Defendants assert the
affirmative defense of qualified immunity. Qualified Immunity shields a
government official from civil liability for damages based on the performance of
discretionary functions if the official=s acts were objectively reasonable in light
of clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
qualified immunity standard gives ample room for mistaken judgments by
protecting A>all but the plainly incompetent or those who knowingly violate the
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law.=@ Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). In suits brought under federal law, government
employees are presumptively entitled to the defense of qualified immunity and,
once the defense is asserted, the burden shifts to the plaintiff to show that
immunity does not bar recovery. Salas v. Carpenter, 980 F.2d 299, 306 (5th
Cir. 1992); Bennett v. City of Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989).
One of the principal purposes of the qualified immunity doctrine is to
shield officers not only from liability, but also from defending against a lawsuit.
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954
F.2d 1054, 1057 (5th Cir. 1992). The Individual Defendants should not be
burdened with the cost of conducting extensive discovery in this matter until
the issue of qualified immunity is determined by the Court. Therefore, the
Individual Defendants request that the Court stay discovery and the attendant
legal expense and burden of defending this lawsuit until a determination is
made by this Court on the issue of qualified immunity.
In assessing a claim of qualified immunity, a court engages in a two-step
analysis. First, the court determines whether a plaintiff has alleged the
violation of a clearly established federal constitutional or federal statutory
right. Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993) (rev’d on other
grounds by 507 U.S. 163 (1993)). If the plaintiff has first alleged a
constitutional violation, the court then decides if the defendant=s conduct was
objectively reasonable, because A>[e]ven if an official=s conduct violates a
constitutional right, he is entitled to qualified immunity if the conduct was
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objectively reasonable.=@ Id. at 105, (citing Spann v. Rainey, 987 F.2d 1110,
1114 (5th Cir. 1993)) (quoting Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.
1992)). Furthermore, in order to state a cause of action under Section 1983, a
plaintiff must identify defendants who were either personally involved in the
constitutional violation or whose acts are causally connected to the
constitutional violation alleged. Anderson v. Pasadena Indep. Sch. Dist., 184
F.3d 439, 443 (5th Cir. 1999). That is, to hold individual defendants liable
under Section 1983, a plaintiff must adduce facts demonstrating the
defendants= specific participation in the alleged wrong. See Murphy v. Kellar,
950 F.2d 290, 292 (5th Cir. 1992). Because Plaintiffs have failed to set out
specific facts, with respect to each Individual Defendant, that, if proven, would
demonstrate a federal constitutional deprivation, these Individual Defendants
are entitled to and enjoy the protection of qualified immunity. Alternatively,
should Plaintiffs wish to pursue claims against the Individual Defendants in
their individual capacities, they should be required to file a Rule 7(a) reply with
greater detail to satisfy their burden to rebut the presumption of qualified
immunity.
4. PLAINTIFFS’ STATE CONSTITUTIONAL CLAIMS FOR ACTUAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEYS’ FEES AGAINST THE DEFENDANTS ARE NOT RECOGNIZED UNDER TEXAS LAW.
Notwithstanding the foregoing, in Plaintiffs’ Original Petition, they seek
actual damages and mental anguish, exemplary damages2 and attorneys’ fees3
2The Texas Torts Claims Act also makes it clear that exemplary damages cannot be recovered in an action against a governmental unit under the Act. TEX. CIV . PRAC. & REM. CODE §101.024.
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against the DISTRICT and the Individual Defendants under the Texas
Constitution. Plaintiffs’ state law constitutional claims against the DISTRICT
and the Individual Defendants should be dismissed, as a matter of law, as it is
clear that sovereign immunity bars a suit for money damages for general
constitutional torts under the Texas Constitution against governmental
entities. See Texas A&M Univ. Syst. v. Luxembourg, 93 S.W.3d at 425. Texas
Courts have also consistently held that there is no implied private right of
action for damages4 for general violations of the Texas Constitution and no
state statute comparable to Section 1983 to allow a claim to be raised against
the DISTRICT or the Individual Defendants5. City of Elsa, 226 S.W.3d at 392;
see City of Beaumont v., Bouillion, 896 S.W.2d 143, 147 (Tex.1995); Jackson v.
Dist.] 1999, no pet.) (noting that Bouillion applies to other rights under the
Texas Constitution). Consequently, Plaintiffs’ claims for monetary damages,
exemplary damages and attorneys’ fees under the Texas Constitution should be
denied and dismissed as a matter of law.
3Under Texas law, it is also well-established that the attorneys’ fees may not be recovered from an opposing party unless such recovery is provided for by statute or contract. Texas. A&M Univ. Syst. v. Luxemburg, 93 S.W.3d 410 (Tex. App.-Houston [14th Dist.] 2002, pet. denied) (citing Traveler's Indem. Co. of Com. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1993)). In Luxemburg, the court concluded there was no basis for awarding attorneys’ fees when Plaintiff brought suit alleging deprivation of constitutional rights under the freedom of assembly and free speech clause of the Texas Constitution, even though a final judgment had awarded Luxemburg back pay, attorneys’ fees or costs. The Appellate court cited Boullion in reversing the monetary judgment for Plaintiff in its entirety including the award for back pay and attendant benefits and attorneys’ fees. See also City of San Benito v. Ebarb, 885 S.W.3d 711, 723 (Tex. App. - Corpus Christi 2002).
4 Although equitable remedies for violations of the Texas Constitution are not prohibited, a party seeking monetary damages requests a legal remedy, not an equitable one. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007); Patel v. City of Everman, 179 S.W.3d 1, 14 (Tex. App.–Tyler 2004, no pet.). Claims seeking equitable relief for Texas constitutional violations may only be maintained against governmental entities, so Plaintiffs’ claims against the Defendants in their individual capacities should be dismissed as a matter of law. City of Elsa, 226 S.W.3d at 392.
5Plaintiffs’ specific constitutional claims against the Individual Defendants are further barred by section 101.106(e) of the Texas Torts Claims Act. TEX. CIV . PRAC. REM. CODE. §101.106(e)
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5. PLAINTIFFS==== STATE-LAW TORT CLAIMS AGAINST THE DEFENDANT DISTRICT AND THE INDIVIDUAL DEFENDANTS, IN THEIR OFFICIAL OR REPRESENTATIVE CAPACITIES ARE BARRED BY SOVEREIGN OR GOVERNMENTAL IMMUNITY.
Notwithstanding the foregoing, sovereign immunity is a common-law
doctrine long-recognized in Texas; under its principles, governmental entities
"... as a rule are not liable for injuries resulting from the negligence of their
officers or agents, and no recovery can be had in damages unless liability be
created by statute." Harris County v. Gerhart, 283 S.W. 139, 140 (Tex. 1926);
State v. Terrell, 588 S.W.2d 784, 785 (Tex. 1979). As a governmental agency,
the La Joya Independent School DISTRICT "... is shielded by governmental
immunity from liability unless that immunity is waived by the legislature.
[Citation omitted]. Any legislative waiver of governmental immunity must be
clear and unambiguous. [Citation omitted]." Toungate v. Bastrop Indep. Sch.
Dist., 842 S.W.2d 823, 828 (Tex. App.CAustin 1992, no writ); see also Mount
Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex. 1989). The
Texas Tort Claims Act is a statutory waiver of sovereign immunity applicable to
tort-based causes of action. TEX. CIV. PRAC. & REM. CODE ANN. ''101.001 et seq
(Vernon 2005). However, it is a limited waiver. Ramos v. City of San Antonio,
974 S.W.2d 112, 116 (Tex. App. B San Antonio 1998, no writ). Under the
provisions of sections 101.021 and 101.051 of that Act, a school DISTRICT
may be liable only on causes of action arising from the use or operation of
motor vehicles. See Pierson v. Houston Indep. Sch. Dist., 698 S.W.2d 377 (Tex.
App. C Houston [14th DISTRICT] 1985, writ refused n.r.e.).
Furthermore, to the extent Plaintiffs raise their state-law tort claims
against the Individual Defendants, in their official or representative capacities,
an Aofficial-capacity suit@ is a suit against the official=s office and not against
the official. Whitehead v. University of Texas Health Science Ctr., 854 S.W.2d
175, 179 (Tex. App.CSan Antonio, 1993, no writ). An official-capacity suit is,
therefore, no different than a suit against the governmental entity itself.
Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also City of Dallas v.
Dist.] 1990, no writ). Based upon the above authorities, Defendants request
that the Court deny Plaintiffs’ state-tort law claims for want of jurisdiction
under the doctrine of sovereign immunity or governmental immunity.
6. PLAINTIFFS==== STATE-LAW TORT CLAIMS AGAINST INDIVIDUAL DEFENDANTS ADRIANA VILLARREAL AND RICARDO VILLARREAL IN THEIR INDIVIDUAL CAPACITIES ARE BARRED UNDER SECTION 101.106(e) OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE.
Notwithstanding the foregoing and to the extent Plaintiffs are raising
their state-law tort claims against Defendant ADRIANA VILLARREAL, and
Defendant, RICARDO VILLARREAL (the paid employees of the DISTRICT), in
their individual capacity, the Texas Torts Claims Act extends the DISTRICT=s
sovereign immunity to governmental employees. Urban v. Canada, 963 S.W.2d
805, 807-08 (Tex. App.CSan Antonio 1998, no pet.). Section 101.106(e)
provides: A[i]f a suit is filed under this chapter against both a governmental
unit and any of its employees, the employee shall immediately be dismissed on
the filing of a motion by the governmental unit.@ TEX. CIV. PRAC. & REM. CODE '
101.106(e). Accordingly and by operation of Section 101.106(e) of the Texas
Torts Claims Act, the La Joya Independent School DISTRICT moves that the
Court dismiss Plaintiffs= state-law tort claims against Defendant, ADRIANA
VILLARREAL, and Defendant RICARDO VILLARREAL, in their individual
capacities, as a matter of law.
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7. The INDIVIDUAL DEFENDANTS ARE ENTITLED TO STATUTORY IMMUNITY FROM ALL STATE CLAIMS PURSUANT TO §§22.051(a)(1), 22.051(a)(5), 22.051(a)(6), 22.051(b), 22.0511(a) AND 22.0511(c) OF THE TEXAS EDUCATION CODE, INCORPORATING THE PAUL D. COVERDELL TEACHER PROTECTION ACT OF 2001 ( 20 U.S.C. §§ 6731 et seq.), AS AMENDED.
Notwithstanding the foregoing, Defendants ADRIANA VILLARREAL,
RICARDO VILLARREAL, and IRENE M. GARCIA are professional employees of a
school DISTRICT and in their individual capacities are immune from liability
from all state claims pursuant to TEXAS EDUCATION Code §§22.051 and 22.0511.
out the definition for “professional employee of a school DISTRICT" and
includes within this definition a superintendent, principal, teacher, including a
substitute teacher, supervisor, social worker, counselor, nurse, teacher's aide
employed by a school DISTRICT, as well as any other person employed by a
school DISTRICT whose employment requires certification and the exercise of
discretion. TEXAS EDUCATION CODE §§22.051(a)(1) and 22.051(a)(6).
Furthermore, the term “professional employee of the school DISTRICT” also
includes a member of the board of trustees of an independent school district.
TEXAS EDUCATION CODE §22.051(a)(5).
It is important to note that the immunity to which Defendants, ADRIANA
VILLARREAL, RICARDO VILLARREAL and IRENE M. GARCIA are entitled to
under this provision, is in addition to any other immunity that they are entitled
to under Federal or Texas Law. TEXAS EDUCATION CODE, §22.051(b) provides as
follows:
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(b) The statutory immunity provided by this subchapter is in addition to and does not preempt the common law doctrine of official and governmental immunity.
TEXAS EDUCATION CODE §22.0511 provides statutory immunity from
liability to Defendants ADRIANA VILLARREAL, Individually, RICARDO
VILLARREAL, Individually, and IRENE M. GARICA, Individually and In Her
Capacity as Board President. Section 22.0511(a) provides as follows:
(a) a professional employee of a school DISTRICT is not personally liable for any act that is incident to or within the scope of duties of the employee's 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.
The immunity provided by this statute is in addition to the immunity
afforded to the Individual Defendants under state law, and under the Paul D.
Coverdell Teacher Protection Act of 2001, 20. U.S.C. Section 6731, et seq., as
amended. TEXAS EDUCATION CODE §22.0511(c). Section 22.0511(c) states
further that “[n]othing in this subsection shall be construed to limit or abridge
any immunity or protection afforded an individual under state law.”
It is uncontroverted that Individual Defendants, ADRIANA VILLARREAL
and RICARDO VILLARREAL are certified administrators (supervisors) of the
Defendant DISTRICT. Defendant, ADRIANA VILLARREAL is the Assistant
Superintendent of Human Resources and Student Services. RICARDO
VILLARREAL is the Administrator for Human Resources. Furthermore, it is
also uncontroverted and judicially admitted that Defendant, IRENE M. GARCIA
is a school board member. Therefore, each of these Defendants in their
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individual capacity are entitled to immunity from all State claims as provided
for in TEXAS EDUCATION CODE §§22.051 and 22.0511.
IV. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, for the reasons shown above,
the DISTRICT and Individual Defendants respectfully move the Court:
a. Grant their 12(b)(6) Motion to Dismiss all claims against Defendant
Miguel A. Saldaña ATTORNEY IN CHARGE State Bar No. 17529450 Federal Bar No. 10954
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OF COUNSEL: Maxine Longoria-Nash State Bar No. 00787919 Federal Bar No. 16846 WALSH, ANDERSON, BROWN, GALLEGOS & GREEN, P.C. 6521 North 10th Street, Ste. C McAllen, Texas 78504 Telephone: (956) 971-9317 Facsimile: (956) 971-9318 COUNSEL FOR DEFENDANTS, LA JOYA INDEPENDENT SCHOOL DISTRICT, ADRIANNA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT
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CERTIFICATE OF SERVICE I hereby certify that on the 16th day of September, 2011, a true and correct copy of the above and foregoing Defendants, La Joya Independent School DISTRICT, Adriana Villarreal, Individually, Ricardo Villarreal, Individually, and IRENE M. Garcia, Individually and In Her Capacity as Board President for the La Joya Independent School DISTRICT’s 12(b)(6) Motion to Dismiss and to Stay Discovery was electronically filed with the Clerk of the Court using the CM/ECF electronic filing system which will send notification of such filing to the following: COUNSEL FOR PLAINTIFFS: Ramon Garcia / Emerson E. Arellano LAW OFFICES OF RAMON GARCIA, P.C. 222 West University Dr. Edinburg, Texas 78539 Telephone: (956) 383-7441 Facsimile: (956) 381-0825 The undersigned further certifies that a true and correct copy of the foregoing document has been provided to the following counsel of record via facsimile:
COUNSEL FOR DEFENDANT, ISMAEL “KINO” FLORES: Ismael “Kino” Flores, Jr. LAW OFFICE OF ISMAEL “KINO” FLORES, JR. 1118 W. Palma Vista Drive Palmview, Texas 78572 Telephone: (956) 781-5444 Facsimile: (956) 787-9175
/s/ Miguel A. Saldaña MIGUEL A. SALDAÑA
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
ROSENDO BENAVIDES, §
YVONNE BENAVIDES, §
KATIE CEDILLO, JUAN CERDA, §
RODOLFO CERDA, JR., §
SERGIO FLORES, §
ROSALVA FUENTES, §
LEONEL GARZA, JR. §
MARIA LANDEZ, ARTURO RODRIGUEZ §
MARTHA ROMERO, §
HERMELINDA SALINAS, §
JUAN L. SALINAS, OSCAR SALINAS, §
HECTOR SOSA AND ANTONIO URESTI §
Plaintiffs §
§
vs. § CIVIL ACTION NO. 7:11-cv-260
§
LA JOYA INDEPENDENT SCHOOL §
DISTRICT, ISMAEL “KINO” FLORES, §
INDIVIDUALLY, ADRIANA VILLARREAL, §
INDIVIDUALLY, RICARDO VILLARREAL, §
INDIVIDUALLY, IRENE M. GARCIA, §
INDIVIDUALLY AND IN HER CAPACITY §
AS BOARD PRESIDENT FOR §
THE LA JOYA INDEPENDENT §
SCHOOL DISTRICT §
Defendants §
ORDER
Be it remembered that on this day came to be considered the 12(b)(6) Motion to Dismiss
and to Stay Discovery filed by Defendants, LA JOYA INDEPENDENT SCHOOL DISTRICT,
