NUMBER 13-13-00325-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

LA JOYA INDEPENDENT 

SCHOOL DISTRICT, ET AL, Appellants,

v.

RUTH VILLARREAL, INDIVIDUALLY

AND RUTH VILLARREAL INSURANCE, LLC Appellees.

 

On appeal from the 92nd District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Perkes

Appellant La Joya Independent School District (“the District”) and appellants Joel 

Garcia, Juan Jose “J.J.” Garza, Jesus “Chuy” Avendano, and Oscar “Coach” Salinas

(collectively “Individual Defendants”), appeal the trial court’s order denying appellants’ 

plea to the jurisdiction in a suit brought by appellee Ruth Villarreal, individually and as 
2

Ruth Villarreal Insurance L.L.C. (“Villarreal”).1 By two issues, appellants argue the trial 

court lacks jurisdiction over Villarreal’s: (1) breach of contract claim against the District;

and (2) tort claims against the Individual Defendants. We affirm. 

I. BACKGROUND

In 2005, the District and American Administrative Group, Inc. (AAG) entered a 

contract whereby AAG would serve as a third party administrator of the District’s selffunded health plan for District employees. The District and AAG were the only 

signatories to the written contract, and the contract stated the following:

Beneficiaries. This Agreement is solely for the benefit of the parties and 

their successors and permitted assigns, and does not confer any rights or 

remedies on any other person or entity.

The agreement contained an attached “EXHIBIT ‘A,’” which outlined the “costs payable 

to AAG for the Services rendered by AAG . . . .” The parties included a provision in 

“EXHIBIT ‘A’” that outlined the applicable “Broker Commissions” for the broker of record, 

which at that time was Bob Trevino Insurance. 

In 2012, the District and AAG, which had undergone a corporate name change to 

HealthSmart Benefit Solutions, Inc. (HBS), amended the contract and replaced the 

original “EXHIBIT ‘A’” with a new “EXHIBIT ‘A’” that reflected the “fees and costs payable 

by Customer [the District] for the Services rendered . . . .” Again, the District and HBS 

included a provision that outlined the commissions due the broker of record:

Broker Commissions. As the Broker of Record, Ruth Villarreal shall 

receive the following:

 

1

 Named defendants Carmen “Chiquis” Ramirez and Albert Trevino, individually and d/b/a Trevino 

Insurance, were not parties to the appellants’ plea to the jurisdiction and accordingly are not parties to the 

instant interlocutory appeal. 
3

(a) A monthly fee of $2.35 multiplied by the actual number of 

participating employees at the beginning of each month for 

consulting services relating to the Plan. 

(b) Stop-loss carrier paid commissions of 5% of gross premiums for 

the placement of the Customer’s specific and aggregate reinsurance 

converge with stop-loss carrier.

In Villarreal’s original petition, Villarreal alleged that in late 2012, the Individual 

Defendants ran for election to the District school board. According to Villarreal’s petition, 

the Individual Defendants openly expressed their intent to award contracts exclusively to 

their campaign supporters, including Bob Trevino, whom Villarreal described as a main 

supporter of the Individual Defendants’ campaigns. Villarreal further alleged that one of 

Trevino’s employees publicly acknowledged that the employee gave $15,000 to some of 

the Individual Defendants in exchange for them replacing Villarreal with Trevino as the 

insurance broker for the District-HBS contract. 

Villarreal’s petition stated that in January 2013, the Individual Defendants placed 

an item on the District board’s agenda regarding the agent of record for the District’s 

employee health benefits insurance. At the District’s board meeting, the District decided 

to replace Villarreal with Bob Trevino. Villarreal brought suit against the District for 

breach of contract and sued the Individual Defendants for tortious interference with a 

contract and civil conspiracy.

The District and the Individual Defendants filed a plea to the jurisdiction. The 

District argued that governmental immunity shielded it from Villarreal’s breach of contract 

claim and that section 271.152 of the Texas Local Government Code, which provides a 

limited waiver of immunity for certain breach of contract claims, did not apply. The 
4

Individual Defendants contended that section 22.0511 of the Texas Education Code 

provided them immunity to Villarreal’s tort claims and that Villarreal failed to exhaust 

administrative remedies as required by section 22.0514 of the Texas Education Code. 

After a hearing on the plea to jurisdiction, the trial court denied the defendants’ plea. 

II. STANDARD OF REVIEW

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction. 

City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). Whether a 

court has subject matter jurisdiction is a question of law that we review de novo. Id. In 

Heckman v. Williamson County, the Texas Supreme Court succinctly summarized the 

well-settled standard for reviewing jurisdictional pleas:

When assessing a plea to the jurisdiction, our analysis begins with the live 

pleadings. We may also consider evidence submitted to negate the 

existence of jurisdiction—and we must consider such evidence when 

necessary to resolve the jurisdictional issue. We construe the plaintiff’s 

pleadings liberally, taking all factual assertions as true, and look to the 

plaintiff’s intent.

We must grant the plea to the jurisdiction if the plaintiff’s pleadings 

affirmatively negate the existence of jurisdiction. And we must grant the 

plea if the defendant presents undisputed evidence that negates the 

existence of the court’s jurisdiction.

369 S.W.3d 137, 150 (Tex. 2012) (citations omitted); see generally Tex. Dep’t of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 226–28 (Tex. 2004). 

III. GOVERNMENTAL IMMUNITY

By its first issue, the District argues the trial court lacks jurisdiction over the breach 

of contract claim against the District because the District, as a governmental entity, is 

immune from suit. The District contends the statutory waiver of governmental immunity 
5

is inapplicable because there is no qualifying contract between the District and Villarreal. 

The District further contends that Villarreal does not qualify as a third-party beneficiary,

that third-party beneficiaries are not included in the statutory waiver, and that Villarreal 

pleaded non-recoverable damages. 

A. Waiver of Governmental Immunity on Government Contracts

Governmental immunity2 protects political subdivisions of the State, such as public 

school districts, from lawsuits for money damages. Ben Bolt-Palito Blanco Consol. 

Indep. Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint Self-Insurance 

Fund, 212 S.W.3d 320, 324 (Tex. 2006). Governmental immunity can be waived, “but 

we defer to the Legislature to do so by statute.” City of Houston v. Williams, 353 S.W.3d 

128, 134 (Tex. 2011). In enacting section 271.152 of the Texas Local Government 

Code, the Legislature waived qualifying local government entities’ immunity from suit for 

certain breach of contract claims, providing:

A local government entity that is authorized by statute or the constitution to 

enter a contract and that enters a contract subject to this subchapter waives 

sovereign immunity from suit for the purpose of adjudicating a claim for 

breach of the contract, subject to the terms and conditions of this 

subchapter.

TEX. LOC. GOV’T CODE ANN. § 271.152 (West, Westlaw through 2013 3d C.S.). 

“According to its plain terms, the statute by clear and unambiguous language waives a 

governmental entity’s immunity from suit for breach of written contract.” Williams, 353 

 

2 Although often used interchangeably, sovereign immunity and governmental immunity are 

distinct. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 n.3 (Tex. 2003). Sovereign immunity 

protects a State and its various divisions from suit and liability. Id. “Governmental immunity, on the other 

hand, protects political subdivisions of the State, including counties, cities, and school districts.” Id. 

(citations omitted). 
6

S.W.3d at 134. The Supreme Court has identified three elements that must be 

established for the section 271.152 waiver to apply:

(1) the party against whom the waiver is asserted must be a “government 

entity” as defined by section 271.151(3); (2) the entity must be authorized 

by statute or the Constitution to enter into contracts; and (3) the entity must 

have in fact entered into a contract that is “subject to this subchapter” as 

defined by section 271.151[]. TEX. LOC. GOV’T CODE[] §§ 271.151–.152.

Id. at 134–35. 

The District, as a public school district, is a “governmental entity” under section 

271.151(3), see TEX. LOC. GOV’T CODE ANN. § 271.151(3)(B) (West, Westlaw through 

2013 3d C.S.), and the District does not contend it was not authorized to enter into 

contracts. The District’s assertion that section 271.152 does not apply focuses on the 

third element—that the contract be one “subject to this subchapter.” 

To qualify as a contract “subject to this subchapter,” 

(1) the contract must be in writing, (2) state the essential terms of the 

agreement, (3) provide for goods or services, (4) to the local government 

entity, and (5) be executed on behalf of the local government entity. 

Williams, 353 S.W.3d at 135; see TEX. LOC. GOV’T CODE ANN. § 271.151. The District 

argues that the first three elements have not been satisfied, stating “there is no written 

contract between [Villarreal] and the District for goods or services, nor are there any 

essential terms to which [Villarreal] can point in the alleged contract . . . .” The District 

does not deny that there is a written and detailed contract between it and HBS, but the 

District emphasizes that Villarreal is not a signatory or party to it. In essence, the District 

argues that Villarreal lacks privity to sue on the contract between the District and HBS 
7

and has no independent contract with the District that satisfies the requirements of section 

271.151. 

Villarreal responds that she is a party to the original contract. In the alternative, 

Villarreal contends that the section regarding broker commissions renders Villarreal a 

third-party beneficiary to the contract between the District and HBS and that she is 

therefore entitled to sue on the contract.

B. Contract Parties

Villarreal asserts she is a contract party. For support, Villarreal points to a 

separate lawsuit, filed after this one, in which the District named Villarreal as a defendant 

on a claim for breach of contract, and the contract in that suit is the same contract as 

here. In that suit, the District amended its pleadings to remove Villarreal as a defendant, 

but Villarreal insists the District’s original pleading in the other lawsuit constitutes a judicial 

admission that Villarreal is a contract party.

Our assessment of whether Villarreal is a party to the contract necessarily requires 

us to interpret the contract. In construing a contract, we must ascertain and give effect 

to the parties’ intentions as expressed in the writing itself. El Paso Field Servs., L.P. v. 

Mastec N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012); Italian Cowboy Partners, Ltd. v. 

Prudential Ins. of Am., 341 S.W.3d 323, 333 (Tex. 2011). To discern the parties’ intent, 

“we must examine and consider the entire writing in an effort to harmonize and give effect 

to all the provisions of the contract so that none will be rendered meaningless.” El Paso 

Field, 389 S.W.3d at 805; Italian Cowboy, 341 S.W.3d at 333. We begin with the 
8

contract’s express language. El Paso Field, 389 S.W.3d at 806; Italian Cowboy, 341 

S.W.3d at 333. 

Whether a contract is ambiguous is a question of law that we decide by looking at 

the contract as a whole in light of the circumstances present when the contract was 

entered. Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 

449–50 (Tex. 2011); David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 451 (Tex. 2008). 

If we determine the contract’s language can be given a certain or definite legal meaning 

or interpretation, then the contract is not ambiguous and we will construe it as a matter of 

law. El Paso Field, 389 S.W.3d at 806; Italian Cowboy, 341 S.W.3d at 333. “Only where 

a contract is ambiguous may a court . . . admit extraneous evidence to determine the true 

meaning of the instrument.” David J. Sacks, 266 S.W.3d at 451 (quoting Columbia Gas 

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)). 

Turning to the contract, the first lines state that it is an agreement between the 

District and HBS (formerly known as AAG). Article II of the contract outlines HBS’s 

obligations, and Article III outlines the District’s. No other obligations or parties are 

mentioned. Throughout the contract, the diction suggests there are only two parties to 

the contract. For example, section 5.1(c) begins, “Neither party,” sections 6.1(a) and 

6.1(c) begin, “Both parties,” section 7.4 begins, “If either party,” and section 9.11 begins, 

“Wherever under this Agreement either party.” Section 9.9 describes the “Relationship 

of the Parties,” and discusses only the District and HBS. Moreover, the 2012 

amendment notes that it amends an agreement “by and between” the District and HBS. 

The District and HBS are the only two signatories to the contract. 
9

The contract language regarding the contracting parties is unambiguous. See

Anglo-Dutch Petroleum, 352 S.W.3d at 449–50 (deciding ambiguity inquiry by looking to 

the entire contract); David J. Sacks, 266 S.W.3d at 451 (same). Accordingly, we need 

not consider the extraneous evidence of the District’s pleadings in a subsequently filed 

case. See David J. Sacks, 266 S.W.3d at 451 (holding court does not admit extraneous 

evidence to interpret unambiguous contract provisions). Based on the contract’s 

express language, and upon viewing the entire contract, we conclude that the District and 

HBS are the only two contract parties, and that Villarreal is not a party to the contract.

C. Third-Party Beneficiaries

Villarreal contends she is an intended third-party beneficiary of the contract 

because the 2012 amendment to the fees exhibit identifies Villarreal as the broker of 

record and outlines how Villarreal’s commissions would be calculated. 

1. Section 271.152 of the Texas Local Government Code Waiver Extends 

to Third-Party Beneficiaries.

As a preliminary matter, the District asserts that section 271.152 does not waive 

immunity for claims brought by third party beneficiaries. See TEX. LOC. GOV’T CODE ANN. 

§ 271.152. Although section 271.152 does not expressly mention third-party 

beneficiaries, we are not convinced that it excludes third-party standing. See id. 

In interpreting a statute, our primary objective is to give effect to Legislature’s 

intent. TEX. GOV’T CODE ANN. § 312.005 (West, Westlaw through 2013 3d C.S.); Molinet 

v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). “The plain meaning of the text is the best 

expression of legislative intent unless a different meaning is apparent from the context or 

the plain meaning leads to absurd or nonsensical results.” Molinet, 356 S.W.3d at 411; 
10

see City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010). A statute shall not be 

construed as a waiver of sovereign immunity unless the waiver is effected by clear and 

unambiguous language. TEX. GOV’T CODE ANN. § 311.034 (West, Westlaw through 2013 

3d C.S.). 

As quoted above, section 271.152 of the Texas Local Government Code waives 

sovereign immunity “for the purpose of adjudicating a claim for breach of the contract, 

subject to the terms and conditions of this subchapter.” TEX. LOC. GOV’T CODE ANN. § 

271.152. We consider the following reasoning made by our sister appellate court 

persuasive:

By its own terms, section 271.152’s waiver is not limited only to suits 

brought by signatory parties—that is, to contractors who directly contract 

with the local government entity. Instead, section 271.152 waives 

immunity for a class of suits—suits for the purpose of adjudicating a claim 

for breach of contract subject to subchapter I—without restricting which 

parties can bring the suit. The logical implication of such statutory 

language is that when, as here, a plaintiff has standing to sue a local 

government entity for breach of a “contract subject to subchapter I,” section 

271.172 waives sovereign immunity “for the purposes of adjudicating that 

claim.”

First-Citizens Bank & Trust Co. v. Greater Austin Area Telecomms. Network, 318 S.W.3d 

560, 567 (Tex. App.—Austin 2010, pet. dism’d).

“Texas law recognizes that third parties have standing to recover under a contract 

that is clearly intended for their direct benefit.” Williams, 353 S.W.3d at 145. We see 

nothing in section 271.152 that abrogates this fundamental principle of contract law. See

TEX. LOC. GOV’T CODE ANN. § 271.152. “Accordingly, when a governmental entity and a 

contracting party enter into a contract subject to subchapter I and denominate a thirdparty beneficiary of that contract, the third-party beneficiary’s claim for breach of contract 
11

falls within the waiver of immunity authorized under section 271.152.” Galveston Indep. 

Sch. Dist. v. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d 802, 810 (Tex. App.—Houston 

[14th Dist.] 2010, no pet.); see First-Citizens Bank, 318 S.W.3d at 567. Having 

determined that a third-party beneficiary of a contract is not barred by section 271.152 

from bringing suit on a contract, we now assess whether Villarreal is a third-party 

beneficiary to the contract between the District and HBS.

2. Applicable Law on Third-Party Beneficiaries

A third party may enforce a contract it did not sign when the parties to the contract 

entered the agreement with the clear and express intent to directly benefit the third party. 

Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); MCI Telecomms. Corp. v. Tex. Utils. 

Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). A third-party beneficiary need not be the 

sole beneficiary to the contract. Stine v. Stewart, 80 S.W.3d 586, 591 (Tex. 2002) (per 

curiam). Only an intended third-party beneficiary may enforce a contract; an incidental 

beneficiary cannot. Tawes, 340 S.W.3d at 425; MCI, 995 S.W.2d at 651. 

To qualify as an intended third-party beneficiary, a party must show that it is either 

a “donee” or “creditor” beneficiary of the contract. Stine, 80 S.W.3d at 589; MCI, 995 

S.W.2d at 651. One is a donee beneficiary if the performance promised will, when 

rendered, come to him as a pure donation. Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d 

at 651. A creditor beneficiary receives the contracted performance in satisfaction of a 

legal duty owed to him by the promisee. Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 

651. This duty may be indebtedness, contractual obligation, or some other legally 

enforceable commitment owed to the third party. Stine, 80 S.W.3d at 589; MCI, 995 
12

S.W.2d at 651. Here, Villarreal argues she is a creditor beneficiary to the contract 

between the District and HBS.

Our analysis of whether Villarreal is a third-party beneficiary requires us to, again, 

interpret the contract. As already observed, whether a contract is ambiguous is a 

question of law that we decide by looking at the contract as a whole in light of the 

circumstances present when the contract was entered. Anglo-Dutch Petroleum, 352 

S.W.3d at 449–50; David J. Sacks, 266 S.W.3d at 451. When a contract is 

unambiguous, the construction of it is a question of law that we review de novo. Tawes, 

340 S.W.3d at 425 (citing Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 

S.W.3d 248, 252 (Tex. 2009); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). 

“In determining whether a third party can enforce a contract, the intention of the 

contracting parties is controlling.” MCI, 995 S.W.2d at 651. “When discerning the 

contracting parties’ intent, courts must examine the entire agreement and give effect to 

each provision so that none is rendered meaningless.” Tawes, 340 S.W.3d at 425 (citing 

Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); Stine, 

80 S.W.3d at 589). “No single provision taken alone will be given controlling effect; 

rather, all the provisions must be considered with reference to the whole instrument.” Id. 

(quoting Coker, 650 S.W.2d at 393). “[A] presumption exists that parties contracted for 

themselves unless it ‘clearly appears’ that they intended a third party to benefit from the 

contract.” MCI, 995 S.W.2d at 651. “All doubts must be resolved against conferring 

third-party beneficiary status.” Tawes, 340 S.W.3d at 425.

3. Villarreal is a Third-Party Beneficiary. 
13

According to Villarreal, a finding that she is not a third-party beneficiary renders 

meaningless the section of the contract covering broker’s commissions. The District 

argues that a finding that Villarreal is a third-party beneficiary undermines the contract’s 

express exclusion of third-party beneficiaries—“This Agreement is solely for the benefit 

of the parties and their successors and permitted assigns, and does not confer any rights 

or remedies on any other person or entity.” Neither party claims the contract is 

ambiguous. Our task is to seek an interpretation of the contract as a whole that renders 

neither contractual provision meaningless. See Tawes, 340 S.W.3d at 425. 

Construing the two contract provisions together, the contract excludes all thirdparty beneficiaries except Villarreal. The contract exempts Villarreal from exclusion by 

specifically naming Villarreal as the owed recipient of commissions for broker services. 

See MCI, 995 S.W.2d at 651 (holding that presumption against third-party beneficiaries 

is overcome when it clearly appears that the contracting parties intended a third party to 

benefit from the contract). This construction preserves meaning for the beneficiaryexclusion provision, precluding claims by other potential third parties that would lack the 

express contractual provision given Villarreal. At the same time, this construction 

effectuates the parties’ manifest intent to satisfy their obligation to compensate Villarreal 

for her broker services. See Stine, 80 S.W.3d at 589 (defining a creditor beneficiary as 

the recipient of a contracted benefit that satisfies indebtedness, a contractual obligation, 

or some other legally enforceable commitment owed that party); MCI, 995 S.W.2d at 651 

(same).

D. Failure to Plead Recoverable Damages is not a Jurisdictional Defect. 
14

The District also premises its immunity from Villarreal’s breach-of-contract claim 

on the contention that Villarreal failed to plead recoverable damages under Texas Local 

Government Code section 271.153. See TEX. LOC. GOV’T CODE ANN. § 271.153 (West, 

Westlaw through 2013 3d C.S.) (limiting the types of damages permitted under a section 

271.152 waiver). Contrary to the District’s belief that section 271.153 creates an 

additional jurisdictional requirement, the Texas Supreme Court has determined, “The 

purpose of section 271.153 is to limit the amount due by a governmental agency on a 

contract once liability has been established, not to foreclose the determination of whether 

liability exists.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 

840 (Tex. 2010);3 see Santa Rosa Indep. Sch. Dist. v. Rigney Constr. & Dev., LLC, No. 

13-12-00627-CV, 2013 WL 2949566, at *5 (Tex. App.—Corpus Christi June 13, 2013, 

pet. denied) (mem. op.). Thus, section 271.153 is not a proper basis for granting a plea 

to the jurisdiction. See Kirby Lake, 320 S.W.3d at 840; Santa Rosa Indep. Sch. Dist., 

2013 WL 2949566 at *5; see also City of N. Richland Hills v. Home Urban Partners, 340 

S.W.3d 900, 909–10 (Tex. App.—Fort Worth 2011, no pet.) (op. on reh’g); City of San 

Antonio ex. rel. San Antonio Water Sys. v. Lower Colo. River Auth., 369 S.W.3d 231, 

236–38 (Tex. App.—Austin 2011, no pet.); Roma Indep. Sch. Dist. v. Ewing Constr. Co., 

No. 04-12-00035-CV, 2012 WL 3025927, at *4 (Tex. App.—San Antonio July 25, 2012, 

pet. denied) (mem. op.). 

 

3 The District mistakenly relies on language from Sharyland Water Supply Corp. v. City of Alton, 

354 S.W.3d 407, 413 (Tex. 2011), for the assumption that the Texas Supreme Court has returned to its

pre-Kirby Lake position that damages pleadings under section 271.153 are jurisdictional. In Sharyland 

Water Supply, the section 271.153 issue was the propriety of damages awarded by a jury, not the role of 

section 271.153 in determining jurisdiction. See id. at 412–13. 
15

E. Summary

Villarreal is not a party to the contract between the District and HBS, but that 

contract manifests the parties’ intent to confer a direct benefit to Villarreal for her broker 

services. See MCI, 995 S.W.2d at 651 (holding contracting parties’ intent is the 

controlling inquiry). As a third-party beneficiary, Villarreal’s breach-of-contract claim falls 

under the waiver of immunity authorized under section 271.152 of the Texas Local 

Government Code. See Galveston Indep. Sch. Dist, 324 S.W.3d at 810; First-Citizens 

Bank, 318 S.W.3d at 567. Villarreal’s breach-of-contract claim is not foreclosed by 

section 271.153 of the Texas Local Government Code. See Kirby Lake, 320 S.W.3d at 

840; see also Santa Rosa Indep. Sch. Dist., 2013 WL 2949566 at *5. We overrule the 

District’s first issue. 

IV. STATUTORY IMMUNITY OF SCHOOL DISTRICT EMPLOYEES

By their second issue, appellants contend the trial court lacks jurisdiction over 

Villarreal’s tort claims against the Individual Defendants because the Individual 

Defendants are immune under section 22.0511 of the Texas Education Code, which 

provides immunity from liability “for any act that is incident to or within the scope of duties” 

of the Individual Defendants’ professional positions. See TEX. EDUC. CODE ANN. § 

22.0511(a) (West, Westlaw through 2013 3d C.S.). Villarreal responds that the 

Individual Defendants’ intentional tortious and criminal acts fell outside the scope of their 

professional duties and thus are not protected by the statutory immunity. Appellants also 

assert Villarreal failed to exhaust administrative remedies, a jurisdictional prerequisite 

under Texas Education Code section 22.0514. See TEX. EDUC. CODE ANN. § 22.0514 
16

(West, Westlaw through 2013 3d C.S.) (“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.”). 

A. Statutory Immunity

Under section 22.0511: 

A professional employee of a school district is not personally liable for any 

act that is incident to or within the scope of the 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. 

Id. § 22.0511. A school board member is a professional employee of the school district. 

TEX. EDUC. CODE ANN. § 22.051(a)(5) (West, Westlaw through 2013 3d C.S.).

The scope of immunity in section 22.0511 is broad, protecting not only actions 

falling within the scope of the employee’s duties but also those incident to the employee’s 

duties. See id. § 22.0511. Our sister appellate courts have determined that if an act 

falls within or incident to authorized duties, then immunity applies, regardless of whether 

the act otherwise violates an employer’s code of ethics, see Kobza v. Kutac, 109 S.W.3d 

89, 94 (Tex. App.—Austin 2003, pet. denied), or even city or state law, see Pierson v. 

Houston Indep. Sch. Dist., 698 S.W.2d 377, 380–81 (Tex. App.—Houston [14th Dist.] 

1985, writ ref’d n.r.e.) (analyzing predecessor statute), disapproved of on other grounds 

by Travis v. City of Mesquite, 830 S.W.2d 94, 103 (Tex. 1992) (emphasizing defendant 

has burden to prove good faith for common-law official immunity). If the act falls neither 

within nor incident to the scope of the employee’s duties, the statutory immunity does not 

cover the act. See Robinson v. Brannon, 313 S.W.3d 860, 866 (Tex. App.—Houston 
17

[14th Dist.] 2010, no pet.) (holding that employees’ acts of making harassing phone calls 

and sending threatening text messages and defamatory emails were outside the scope 

of employment and therefore outside the scope of the section 22.0511 immunity).

Section 22.0511 does not define “scope of duties.” See TEX. EDUC. CODE ANN. § 

22.0511. In other cases, our sister appellate courts have been able to rely on the 

common-law principles of respondeat superior,4 but these are unhelpful here because 

the Individual Defendants’ authority does not flow from a supervisor. Their authority is 

outlined by statute. Relevant here, the Texas Education Code gives school board 

members the general authority to “govern and oversee” the management of public 

schools of the board’s district. TEX. EDUC. CODE ANN. § 11.151(b) (West, Westlaw 

through 2013 3d C.S.). Pursuant to that oversight, the board may enter into contracts. 

See TEX. EDUC. CODE ANN. § 11.1511(c)(4) (West, Westlaw through 2013 3d C.S.). 

B. Discussion 

The Individual Defendants characterize the decision to replace Villarreal generally, 

describing it as a simple contract decision, which would fall within the scope of the 

Individual Defendants’ professional duties. See id. Villarreal asserts the Individual 

Defendants did not simply make a detached business decision; Villarreal claims the 

Individual Defendants, aware of Villarreal’s existing contract rights, planned and decided 

to target her contract rights in satisfaction of an accepted bribe—conduct that would not 

 

4 See Robinson v. Brannon, 313 S.W.3d 860, 866 (Tex. App.—Houston [14th Dist.] 2010, no pet.)

(“Whether one is acting within the scope of his or her employment depends on whether the general act from 

which the injury arose was in furtherance of the employer’s business and for the accomplishment of the 

object for which the employee was employed.” (citing Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 

567, 569 (Tex. 1972); Chesshir v. Sharp, 19 S.W.3d 502, 504–05 (Tex. App.—Amarillo 2000, no pet.)); 

Kobza v. Kutac, 109 S.W.3d 89, 93 (Tex. App.—Austin 2003, pet. denied). 
18

fall within or incident to the Individual Defendants’ statutory duties. See Robinson, 313 

S.W.3d at 866 (providing example of conduct that exceeded the immunity coverage of 

section 22.0511). For the purposes of the jurisdictional issue, we take as true Villarreal’s 

factual assertions. See Heckman, 369 S.W.3d at 150. Accordingly, we hold section 

22.0511 does not preclude the trial court’s jurisdiction over Villarreal’s tort claims against 

the Individual Defendants. See Robinson, 313 S.W.3d at 866. 

C. Villarreal is not Required to Exhaust Administrative Remedies.

The Individual Defendants also contend the trial court lacked jurisdiction over 

Villarreal’s tort claims because Villarreal failed the statutory prerequisite of exhausting 

administrative remedies. See TEX. EDUC. CODE ANN. § 22.0514. Villarreal disagrees 

that section 22.0514 applies, arguing that the tort claims are against the Individual 

Defendants in their individual, rather than official, capacities because their acts were not 

incident to or within the scope of their duties. It is undisputed Villarreal never attempted 

the district’s administrative process.

Texas law has long recognized that exhaustion of administrative remedies is 

unnecessary when a plaintiff’s claims involve the school district employees acting outside 

the scope of their employment. See, e.g., State Line Consol. Sch. Dist. No. 6 of Parmer 

County v. Farwell Indep. Sch. Dist., 48 S.W.2d 616, 617 (Tex. Comm’n App. 1932, holding 

approved). More recently, this fundamental principle has piloted case law on section 

7.057 of the Texas Education Code. See, e.g., Hitchcock v. Bd. of Trs. CypressFairbanks Indep. Sch. Dist., 232 S.W.3d 208, 218 (Tex. App.—Houston [1st Dist.] 2007, 

no pet.) (citing Dotson v. Grand Prairie Indep. Sch. Dist., 161 S.W.3d 289, 291–92 (Tex. 
19

App.—Dallas 2005, no pet.)). Our sister appellate courts have considered this principle

in relation to section 22.0514 but have not had occasion to apply it. See Melendez v. 

Houston Indep. Sch. Dist., 418 S.W.3d 701, 710 (Tex. App.—Houston [14th Dist.] 2013, 

no pet.); see also Johnson v. Tims, No. 10-05-00006-CV, 2005 WL 1531336, at *1 (Tex. 

App.—Waco June 29, 2005, pet. denied) (mem. op.). In those cases, the petitioners 

failed to establish that the challenged conduct fell outside the scope of employment. See 

Melendez, 418 S.W.3d at 710–11; Johnson, 2005 WL 1531336, at *1. In this case, 

however, we have already held that Villarreal brings suit for actions that would not be 

incident to or within the scope of employment duties. 

We stress that “[w]e reject the suggestion that merely pleading form words, such 

as a conclusory allegation that [a professional employee] was acting ‘outside the scope 

of [his or] her employment,’ allows the statutory exhaustion requirement to be 

circumvented.” See Melendez, 418 S.W.3d at 710. We consider the manner in which 

the cause of action was pleaded and analyze the factual allegations upon which relief is 

sought to assess subject matter jurisdiction. See id. Here, because Villarreal’s claims 

and alleged facts address actions falling outside the scope of the Individual Defendants’ 

duties, we hold that Villarreal’s suit is against the Individual Defendants in their individual 

capacities, which does not require the exhaustion of administrative remedies. 

D. Summary

Construing the factual assertions in Villarreal’s favor, see Heckman, 369 S.W.3d 

at 150, we conclude that the Individual Defendants’ acts were neither incident to nor within 
20

the scope of their employment. Accordingly, the professional immunity of section 

22.0511 does not extend to their acts, and Villarreal was not required to exhaust 

administrative remedies against the Individual Defendants in their individual capacities. 

We overrule appellants’ second issue. 

V. CONCLUSION

We affirm the trial court’s order denying the District’s plea to the jurisdiction. 

 

GREGORY T. PERKES

Justice

Delivered and filed the 

3rd day of July, 2014.