Tim Johnson and Ed White v. Charles Tims, Jerry McLemore, and Bobby E. Parker, Jr.

IN THE TENTH COURT OF APPEALS No. 10-05-00006-CV Tim Johnson and Ed White, Appellants v. Charles Tims, Jerry McLemore, and Bobby E. Parker, Jr., Appellees From the 40th District Court Ellis County, Texas Trial Court # 69178 MEMORANDUM Opinion Tim Johnson and Ed White filed suit against Charles Tims, Jerry McLemore and Bobby Parker for malicious prosecution. In the same lawsuit, Johnson and White sued the Waxahachie Independent School District (WISD) for claims arising out of WISD’s terminating their employment. Tims, McLemore, and Parker filed a plea to the jurisdiction and a motion to dismiss. The trial court granted the motion to dismiss and severed the cause of action for malicious prosecution.[1] Johnson and White bring this appeal. BACKGROUND Johnson and White were employees of WISD. According to their pleadings, they presented a written grievance to the Superintendent against members of the school board. Johnson and White were subsequently placed on administrative leave, and then were terminated. They appealed their termination according to WISD’s grievance policy, but the board denied their appeal. They allege that Parker, WISD’s Superintendent, instructed his subordinates McLemore and Tims to report to the Waxahachie police that Johnson and White had illegally accessed and obtained personal information about WISD employees from the WISD computer network. Johnson and White were charged with third degree felony tampering with government records. They were later “no-billed” by a grand jury. Exhaustion Tims, McLemore, and Parker filed a plea to the jurisdiction and motion to dismiss, arguing that Johnson and White did not exhaust their administrative remedies as required by law. Section 22.0514 of the Texas Education Code provides: “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.” Tex. Educ. Code § 22.0514 (Vernon Supp. 2004-05). Johnson and White admit that they did not file a grievance with WISD complaining of malicious prosecution. Johnson and White argue, however, that section 22.0514 does not bar their malicious prosecution suit against Tims, McLemore, and Parker because there were no WISD remedies to be exhausted prior to filing suit. Johnson and White were no longer employees at the time they were no-billed on the tampering charges. WISD Board Policy, under the title “Public Complaints,” states: “Members of the public having complaints regarding the District’s policies, procedures, or operations may present their complaints or concerns to the Board after following the procedures defined in this policy.” Johnson and White argue that their malicious prosecution claim cannot be characterized as a complaint regarding WISD’s “policies, procedures, or operations.” Like the trial court, we understand these to be broad categories and do not read WISD’s policy statement to preclude a grievance arising from a specific action taken by the Superintendent or other school officials. Johnson and White also argue that the exhaustion requirement does not apply because Parker, Tims, and McLemore were not sued as “professional employees” of WISD. Section 22.051 of the Texas Education Code defines “professional employee of a school district” to include superintendents and supervisors. Tex. Educ. Code § 22.051 (Vernon Supp. 2004-05). At the time of the complaint, Parker was the District’s superintendent, Tims was the assistant superintendent, and McLemore was the director of athletics, safety and security. All three were professional employees for purposes of section 22.0514. Johnson and White argue that they did not sue Parker, Tims, and McLemore in their official capacities, but as individuals acting with malice and outside the scope of their authority as WISD employees or officials. However, it is not clear from their petition that Parker, Tims, and McLemore are being sued in their individual capacities and not as employees of WISD. The petition identifies Parker as Superintendent, alleges that Tims and McLemore acted under Parker’s direction, and prays that all defendants—presumably including WISD—be held jointly and severally liable for actual damages. See Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex. App.—Corpus Christi 2002, no pet. h.) (“When a petition fails to specify the capacity in which a person is sued, we will look at the ‘course of the proceedings’ to determine the nature of the liability the plaintiff seeks to impose.”). Moreover, reporting suspected criminal conduct regarding school district property to law enforcement is within the scope of employment of professional employees of a school district. We conclude that Johnson and White’s malicious prosecution claim is a suit against professional employees of a school district for the purposes of section 22.0514. Thus, under WISD’s “Public Complaints” policy, Johnson and White were required to present their claims to WISD’s administrative process. Finally, Johnson and White argue that the trial court erred “by, in effect, granting summary judgment on” their malicious prosecution claim. They cite comments by the trial court expressing doubts about the viability of that claim. However, the trial court’s order granted the defendants’ motion to dismiss based on their plea to the jurisdiction. That motion argued that Johnson and White had failed to exhaust their remedies under section 22.0514 of the Texas Education Code. We find no reason to believe the trial court dismissed their claim on other grounds. Abatement Johnson and White argue that if exhaustion is required, their cause should be abated. Typically, when a trial court lacks subject matter jurisdiction because an agency has exclusive jurisdiction, the trial court must dismiss without prejudice such claims falling within the agency’s jurisdiction. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 228 (Tex. 2002). If a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed; but if the impediment to jurisdiction could be removed, the court may abate the proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured. American Motorists Insurance Company v. Fodge, 863 S.W.3d 801, 805 (Tex. 2001). Here, the impediment to the trial court’s jurisdiction could be removed if Johnson and White exhaust their administrative remedies through WISD’s administrative process. The trial court should have abated the claim to allow Johnson and White a reasonable opportunity to cure the jurisdictional problem. Subaru, 84 S.W.3d at 228. CONCLUSION We reverse the trial court’s judgment dismissing Johnson and White’s suit against Parker, Tims, and McLemore, and remand the cause to the trial court with instructions to abate its proceedings to allow Johnson and White to exhaust their administrative remedies with WISD. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Reversed and remanded Opinion delivered and filed June 29, 2005 [CV06] [1] We note that the suit from which this action was severed is also before us on appeal. Waxahachie Independent School District v. Johnson, 10-04-00367-CV. We do not here express any opinion on the merits of that appeal.