## In the Court of Appeals Second Appellate Distri ct of Texas at Fort Worth

___________________________ No. 02

- 23

- 00446

- CV

___________________________

On Appeal from the 141st District Cou rt Tarrant County, Texas Trial Court No. 141

- 343726

- 23
Before Kerr, Birdwell, and Bassel, JJ. Me moran dum Opinion by Justice Bassel 

### I RVI NG 

### B UTLER 

### II , Appellant

V



### . R ESPONSIVE 

### E DUCATION 

### S OLUTIONS 

### , Appellee2 M EMORANDUM OPINI ON
I. Introduction Appellant Irving Butler II appeals from the order granting the plea to the jurisdiction filed by Appellee Respon sive Education Solutions , 1 which operates the
open

- enroll ment charter sc hool that previously employed B ut ler. In a single issue,
Butler argues that the trial court erred by granting A ppellee ’ s plea to the juris dict ion, by which he contends that Ap pellee improperly received the protection of governmental immuni ty 2 i n contradic tion to the Texas Edu cation Code. Because the Texas Sup reme Court has held that open

- enrollment charter schools and their charter
holders hav e governmental immunity to the same extent as pub lic sch ools , and
because Butl er failed to show that Appellee waiv e d its governmental immunity , we affirm.

1 Per Appellee ’ s brief, “ Responsive Education Solutions is t he form er name of t he no n[]profit co rporation, ResponsiveE d Texas.

. . . [A] ny reference to ‘ Responsive Education Solu tion s ’ named in B ut ler ’ s [p ]e tition is a misnomer. ”

2 Courts often use the terms sovereign immunity and governmental immunity interch an geably. Wic hita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 694 n.3 (Tex. 2003). Sovereign immunity protects the State a s well as “vari ous division s of state governmen t, in cluding agencies, bo ards, hospitals, and universities ” from liability

. Id

. G ov ernmental imm unity protects political subdivisions of the State, i ncluding counties, cities, and school districts. Id

. B e cause this case deals with a pol itical subdivisi on of the S t ate

— an open

- e nrollment charter school

— our discussion b elow will use the t erm governmen t al immunity.3 II. Backgro und 3 Appellee hired Butler in 2022 to serve as a general

- educatio n classroom teacher

at Ig nite C ommunity School , which is a n open

- enroll ment charter

- school campu s
oper ated by Appellee

. Butler received a handbook , which explicitl y states that Ap p ellee is an at

- w ill employe r . Bu tler si gned an acknowledg ment that he had read
the handbook.
I n November 2022, Bu tler intervene d to b reak up a fight b etween two students

. Appellee initiall y placed Butler o n adm i n istrative leave for his us e of
excessive forc e t o res train a student with a di sability , resulting in that student ’ s sustaining broken bones

. But later , Appellee terminated Butler ’ s employment. Butler sued Appellee for breach of contract “ purs uant to Ch a pt er 271 of the
Texas Local Government Code ” and sued und er the doct rines of respondeat superior,

a gency , ratification, and non delegable duty and sought attorney ’ s f e es as well as prejudgment and postjudgment interest

. Appellee an swered with a general de n ial and later amended it s answer to plead specifi c denials and affirm ative defenses. Among it s affirmative defe n s es , Appellee pleaded the def ense of governmental immunity as to all of Butler ’ s claims, expl ainin g that [a]s a n open

- enr ollment charter schoo l , [ Appellee] is “immune from liability and suit to the same extent as a s c h ool d istrict, and the employees and v olunteers of th e open

- enrollment charter school or

3 We note that the “ Statement of Facts ” section of Butler ’ s brief includes no record reference s . We do not cond one this bri efin g tacti c. See g en erally Tex. R. App. P. 38.1(g) (requi ring the statement of facts to be supported by record refer ences).4 charter holder are immune from liability and suit to the s ame extent as scho ol district empl o y ee s and volunteers.” Tex. Educ. Code [Ann.] § 12.1056(a); see also El P a s o Edu c. Initiative, Inc. v. Amex Pr op [ s . ] , LLC , 602 S.W.3d 5 21, 529 (Tex. 2020) (holding that charter schools are arms of the state, have immunity, and t hat ev en a contract signed b y t he superintendent/CEO who was also board chair was not properly execut e d and therefore did not waive immuni ty for breach of contrac t where the [b] oard of [d] irectors did not approve the contract). A school district [

— ] and, by exten sion, an open

- enrollm e nt char ter school [

— ] is immune from suit for breach of contract unless it e n ters into a properly executed written agre ement for the provision of goods or service s. See Tex. Loc. Gov’t Code [Ann.] §§ 2 71.151

– .152. [Appellee] asserts t here exi sts no [] cont r act and no [b] oard of [d] irector [ s ’ ] approval of any contract necessary t o waive [Appellee ’ s] immunity. Appellee thereafter filed a plea to the jurisdiction

. Appellee explained that
Butler was an at

- will employee , tha t no employment contract between th e parties was executed , and that Butler ’ s employment was law f u lly t erminated after he used
excessiv e force against a student. Appellee argue d that Butler not only could not meet his burden of establishing a prima facie case for breach of contract (because no

contract ever existed between the parties) but al s o that he could not proceed on his
cla ims because he could not demonstrate and had failed to assert a clear and

un ambiguous statu tory waiver of Appellee ’ s gover nm ental immunity. Appellee

at tached to it s plea to the jurisdiction (1 ) a copy of the h a n dbook t hat Butler had
received ; ( 2) a s igned acknowledgment from Butler a ttesting that he ha d received and
had read the handbook ; (3) the November 18, 20 22 written r eprimand for Butler ’ s

a ctions in breaking u p the fight ; (4) the December 2, 2022 administrati v e

- le ave not ice ; (5) a document dated September 22, 2016, showing Butler ’ s surrender of his T exas5 Education A gency Educator Certificate due to excessive di scipline of a student; (6 ) the letter terminating B u tler ’ s employ ment with Appellee; and (7) the affidavit of the sup e ri nt end ent ’ s executive assistan t who ov ersaw the board of dir ectors ’ meetings and averred that no employment contract for Butler (or any general

- education
teachers ) had been presented to t h e boa rd of directors.
Butler f il ed a response a s serting that Appellee “ cannot in one instance [] accept the protection [ i.e ., governmental immunity] afforded to public schools under the
law [] a n d then in the next [] fail to ad here to the laws required of p ublic school districts [i.e., hi re c las sroom tea chers under Texas Educa tion Cod e Chapter 21 contracts instead of at will ]

. ” Butler ’ s re sponse con cluded that “ [ i]f [Appellee] is required by rule to comply with Te xa s Education Code standards, then a contrac t mus t exist in
rel ation t o [hi m because he ] was a classroom te acher. ” Butler did not attach any exhibits to his response , much less any showing that he had a written employment

co ntract with Appe llee.
A p pellee fil ed a reply pointing out that Butler had f ailed to produce m or e t han
a scin t illa of evidence in s upport of the essential elements of his cause of action against Appellee, including (1 ) the existe nce of a valid employment co ntract and (2) waiver o f Appellee ’ s immunity from suit. Appellee further n oted tha t

“ [

u

]n substantiated assertions, improb abl e inferences, and unsupported speculation are not competent evidence and do not raise a fact is sue necessary to waive [ Ap pe llee ’ s ] immunity. ”6 After reviewing the plea to the jurisdiction , the res ponse, and t he re ply, the trial court granted the plea to the jurisdiction and dismiss ed all of Butler ’s claims and requests for relief . T his appeal followed. III. Propriety of Pl ea - to - the

- Jurisdiction Ru ling In his sole issue, Butler ar gues that th e tri al court erred by granting A ppel lee ’ s plea to the juris diction

. The crux of Butler ’ s argument is that although public sc h ool
districts are a ff orded governmental immu nity , un der Chapter 21 of the Texas
Education Code they are require d to emp loy classroom teacher s u nder p robationary

contract s , c ontinuing contract s , or term contract s. See Tex. Educ. Code Ann

. § 21.002(a). B utler ex trapolates that Appell ee should not b e afforded the same
g overnmental immuni ty as a public s ch o ol district unless it also provi de d its
cl assro om teachers with Chapter 21 employment contracts , and thus he must have had an employment contract with Appelle e. Bu tler ’ s faulty extrapolation and lack of
any e vidence of a contract fai l t o raise a question of fact that wou ld defeat Appellee ’ s plea to th e jurisdiction.
A. Standard of Review
Go vernmental immunity exist s to protect subdivisio ns of the State , such as school districts, from lawsuits for money damages and deprives a tri al co urt of subject

- matter jurisdicti on over the plaintiff ’ s claim s unl ess immunity has been waived by the legislature. Mission Consol. Indep. Sch. Dist. v. Garci a , 253 S.W.3d 653, 655 & n.2 (Tex. 2008). A n open

- enrollment charter school or charter holde r is immune from7 liability and suit t o the same extent as a school district

. See Tex. Educ. Code Ann. § 12.1056 ; El Paso Educ. Initiative , 602 S.W.3d at 529

– 30

. A s t his court has previ ously noted, [t] o invoke the trial court ’ s subject

- matter jurisdicti on , t he plaintiff must allege facts that affirmatively demonstrate that the court has jurisdiction to hear the case. Tex. Dep ’t of Parks & Wildlife v. Miranda , 13 3 S.W. 3d 217, 226 (Tex. 2 004). A plea to the jurisdic tion is an appropriate procedural vehic le by which a party may challenge a trial court ’ s subject

- matter j urisdiction. Bland ISD v. Blue , 34 S.W.3d 547, 554 (Tex. 2000); Tex. Dep ’t of Transp. v. Jones , 8 S.W. 3d 636, 639 (Tex. 1 999). When a plea to the jurisdiction challenges the existence of ju ris d ictional facts, as in this case, the court considers the evid ence submitted when resolving the jurisdictional issue. Miranda , 133 S.W.3d at 227. “If the evi de nce creates a fact question regarding the ju risdicti onal issue, then the trial court canno t gra n t the plea to the jurisdiction, and the fact issue will be re solve d by the fact [] finder.” Id. at 227

– 28. But if the jurisdictional evidence is undisputed or f ails to raise a fact qu estion, the trial court rules on the plea to the jurisdiction as a ma tte r of law. Id. at 228.
We review a trial court ’s ruling on a ple a to the jurisdiction de novo. Id. As with the summary

- judgment standard of review, we tak e as tr ue all evidence fa vorable to the nonmovant, indu lging every reasonable inference a nd re sol v

ing any doubts in the nonmovant ’ s favor. Id. However, we ca nnot disregard evidence necessary to show co ntext or disregard unfavorable evidence if reasonable j urors could not disrega rd it. Alamo Heights ISD v. C lark , 544 S.W.3d 755, 771, 793 (Te x. 2018)

. To create a fact question, the nonmovant must present more than a scintilla of probative evidence on each challenged jurisdictional fact. See Miranda , 133 S. W.3d at 227

– 28; see als o Tex. R. Civ. P. 166a(c) (set ting out traditional summary

- judgm en t r evi e w standard); Ford Motor Co. v. R idgway , 135 S.W.3d 598, 600 ( Tex. 2004) (“A genuine issue of material fact exists if more than a scintilla of evidence establi sh ing t he existence of the challenged element is produc ed.”). More than a scintilla of e vi den ce e xists when the evidence allows r easonable and fair

- minded peo ple to differ in their conclusions. Merrell Dow Pharm. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997 ).8 Uni v. of N. Tex. Heal th Sci. Ctr. v. Paul , No. 02 -22- 00305

- CV, 2023 WL 4779480, at *2 ( Tex . A p p.

— Fort Worth July 27, 2023, no pet.) (mem. op.)

. B. A pplica ble L aw A s set forth above, A ppellee ’ s amended answer setting forth its affirmati ve defenses note d that the Texas Supreme Court case of El Paso Education Initiative held
that charter sch oo ls are arms of the state and have gover nmental immunity. 602
S.W.3d at 5 29. As explained by the Tyler Court of Appeals, a number of statutory provisions govern ope n- enrollm ent chart er scho ols and specific ally the circumstances
under which a charter sch oo l may e nter into an employment contract that impacts its ability to claim the protections of governmental immunity : [ Open

- enrollment charter schools are ] nontraditio na l public schools, creat ed and governed by Chapter 12 of the Education Code, [that] receiv e gove r nment funding and comply with th e state ’ s testing and account abili ty system, but they op erate with gre ater flexibility than traditional public schools, in hop es of spurring innovation and improving student achie vement. An open

- enrollment charter sc hool i s subject to federal and state laws and rules governing public schools. See Tex. Educ. C ode Ann. § 12.103(a)

. . . . Moreover, an open

- enrollment charter sch oo l is subject to the Tex as Education Code and rules adopte d thereunder “only to the exte nt the a p plicability to an open

- enrollmen t charter school of a provisi on of [the] code or a rule adopted [thereunder] .

. . is specifically provided.” [ Id. ] § 12.103( b)

. . . . For instance, Section 12.104 se ts forth a number of regulations to which an o pe n- enro l lment charter school is subjecte d. Id. § 12.104 [ 4 ]

4 Notably absent from Section 12.104(b) is any reference to Sub chapters C, D, or E of Chapter 21 of th e Texas Education Code, which dea l with the types o f9 . . . ; s ee al so id. §[§] 12.1051

– .1055

. . . . Furthermore, Section 12.1056(d) provides that an open

- enr ol lment charter sc hool is a local governmental entity as defined by Section 271.151 of th e Local G overnment Code and is subject to liability on a contract as p rovid ed by C hapter 271, Subchapter I [] but only in the manner that liability is provided by that
su bchapter for a sc hool d istrict. See id. § 12.1056(d)

. . . . Azleway Charter Sch. v. Hogue , 515 S.W.3d 359, 362

– 63 (Tex. App .— Tyler 2016, no pet.) (citat ions and footn ote s omitted). And the Texas Supreme Court has further explained that immunity is wa ived
for breach

- of

- cont ract claims brought against a local government entity for contra ct s subj e ct to Local Gover nment Code Chap ter 271 only
if the terms and cond itions of the chapter are met : A local governmental entity that is authorized by statute or t he constitution to enter into a contract and that enters into a contract subject to thi s subcha pter w aives sovereign immunity to suit for the purpose of adju dicat ing a claim fo r breach of the contract, subject to the terms and conditions of this subchapt er .

. . . . T o invoke Chapter 271, the party claiming a breach of contract “must in f ac t have enter ed into a contract that is ‘subject to this subchapter,’ as d efined by [S]e ction 271.151(2).” A contract “subject to this subchapter” means “a written c on tract stating the essen tial terms of the agreement for providing goods or services to t he local gover nmental entity that is properly executed on behalf of th e loc al governmenta l entit y . . . .” [Tex. Loc. Gov ’ t Code Ann. § 271.151(2)(A).]

. . . .
employme nt contracts that a re required for a classroom teacher of a public scho ol

. See gene ra lly Tex. Educ. Code Ann. § 12.10 4 (b)

.10 . . . In this context, a con tract is properly executed when it is executed in accord[ance] w it h the statu t es and regulations prescribing that authority.
El Paso Educ. Initiative , 602 S.W .3d at 530 –32 (fo otnotes omitted)

. The Texas Sup reme Court fur ther el ab orated that ab sent boar d approval , a contract is not “ properly

execute d on behalf of ” t he di strict

. Id. at 533 (citing 19 Tex. A dmin . C ode §§ 1 00.1033(a)

– (b), .110 1(b)

– (c) ).
C. Analys is Applying the relevant law cited above , Butler ’ s argument fails bec au se he did
not have a wr itten employment contract with Appellee, much less one that had be en
app roved by Appe llee ’ s board of directors

. In the absence of a wri tten contract , Butler cannot show that Appellee wa ive d immunity under Chapter 271

. Butler doe s not appear to dispute t h at no written contract exists. Instead, he
appears to mak e a p ol icy ar gument that his emp loyment should have be en govern ed by a writte n contract
. According to Butler, Appellee should not be allowe d to “ accept the protection afforded to p ublic schools under the law ” without being subject to the same requirements

— including E du cation Code Chapter 21 ’ s requirement that all
classroom teacher s mu st be em ployed via contract

— because this would be contrary to the legislature ’ s intent.
But waivers of go vernmental immunity must be effected by “ clear and
unambi guous ” statutor y language. See Tex. Gov ’ t Code Ann. § 311 .03 4. Butler
mentions “ le gisla tive intent ” but ignores that the legislature had the opportunity to11 req uire open

- enr ollment charter sch ools t o execute Chapter 21 contract s w hen hiring
classroom teachers bu t did no t includ e that in Texas Education Code Section 12.104(b) when listing the statutes to which a n open

- en roll ment charter school is subject

. See gen erally Tex. E du c. Code Ann. § 12 .104( b ). Notably absent from Section 12.104(b) is any reference to Su b chapter s C, D, or E of Chapter 21 of the Texas Education Code, which deal with th e types of e mployme nt contracts that a re required
for a classroom teache r of a public s chool. See gene r ally id. It is the legislature ’ s

statut or y exception

— not just “ the Texas Education Ag ency ’ s standard , ” which Butler references generally but never spec ifically cit es

— that does not r eq u ire open

enrol lment char ter s chools to employ classr oom teachers under contract s . The

essen ce of Butler ’ s argu me nt is that as a teacher, he s houl d have the protection s of a
written contr act and receive the benefit of a Cha pter 271 wai ver. In other words, he
wants the law to be dif fe rent than it is , but he has chosen the wrong audience for his
argument as it is th e legislature (not the judicial branch) that authored and passed Texas Education Code Section 12.104(b )

. As the Texas Suprem e Court has explained when noting that charter s ch ools receive the protec tion of governmental immunity , “ Chapter 271 waives that imm un ity
for bre ach

- of

- contract claims brought under the chapter, ” El Paso Educ. Initiative , 602
S.W.3d at 534 , but t o invoke C hapter 271, the party claiming a breach of contr ac t “must in fact have en tered into

. . . a written contract stating the essential t er ms of the

a greement for providing goods or services to the local governmental entity that is12 properly executed on behalf o f the l ocal governmenta l entity .

. . . ” Id. at 5 3 1 ( citing Tex.
Loc. Go v ’ t Code Ann. § 271.151(2)(A) )

. Here, as explained by App el lee, [it

] p rovi ded conclusive evidence establ ishing that it operates as an at

- will employer as permitted by Ch apter 12 of the Edu cation Code, and it negated the existence o f an employment contrac t between the parties

. Further, [Appellee] irrefutably pr ov ed that its [b ]oard of [d] irectors was never presented with the purpo rted employment contract for its approval.
B ecause t he evidence is undispute d that Bu tl er did not have an empl oyment contract , much less one that was properly executed as Local Gover nment Code Section
271.151 requires, and because

— even though B utler wishes otherwise

— the Education
Code does not r equire a wri tten contract bet ween a n open

- enr ol l ment char t er school

an d the general

- education cla ssroom teachers it employs, App el lee ’ s immuni ty from
Butl er ’ s breach

- of

- contract claim was not waived . Accordingly, we hold that Appellee retains its gover nme ntal immunit y. See id. at 53 4. We thus over ru le Butler ’ s sole issue.

IV . Conclu sion
Havi ng overruled Butler ’ s s ole issue, w e af firm the tri al court ’ s order granti ng Appellee ’ s plea to the jurisdiction and dismissing all of Butler ’ s claims and request s f or relief

. /s/ Dabney Bassel Dabney Bassel Just ice
Delivered: June 6, 2024