IN THE

TENTH COURT OF APPEALS

No. 10-11-00127-CV

JOYSTENE MOORE,

Appellant

v.

MICHELLE MILLER, AS NEXT FRIEND

FOR STACIE WOODBERRY,

Appellees

From the 335th District Court

Burleson County, Texas

Trial Court No. 25,557

MEMORANDUM OPINION

In this interlocutory appeal, appellant, Joystene Moore, complains about the trial 

court’s denial of her plea to the jurisdiction. In two issues, Moore contends that the trial 

court should have granted her plea to the jurisdiction because appellee, Michelle Miller, 

as next friend for Stacie Woodberry, failed to exhaust her administrative remedies and 

because Moore, a professional employee of a school district, was immune from liability. 

We affirm.
Moore v. Miller Page 2

I. BACKGROUND

Moore was an eighteen-year employee with the Somerville Independent School 

District who worked as a teacher’s aide, assisting special-needs children. The incident 

giving rise to this lawsuit occurred on December 18, 2007, and involved Stacie, who 

suffers from Rubenstein-Taybi Syndrome, which is characterized by facial 

abnormalities, broad thumbs, gait issues, short stature, and mental disability.

In her appellate brief, Moore describes the incident as follows: “While in study 

skills class, Stacie refused to follow classroom rules which required her to perform 

schoolwork if she wanted to continue to sit at the table. Moore gave Stacie the option of 

performing schoolwork at the table or to move to a sitting position on the floor or to 

stand. Stacie chose to sit on the floor.”1 However, in her third amended petition, Miller 

alleged that:

Ms. Moore, dissatisfied with Stacie’s work, approached Stacie’s 

chair unexpectedly and aggressively dislodged her from it in a 

disciplinary measure. She threw Stacie hard to the ground.

Traumatized as a result of the incident, Stacie (who is unable to 

speak due to her mental deficiencies) began hitting the floor in pain. Ms. 

Moore, while viewing this, asserted laughingly, “Keep hitting the floor; it 

isn’t hurting me,” and “That’s what happens to girls who won’t do their 

work.”

Stacie received no medical attention from Ms. Moore or from any 

 

1

In her affidavit, Moore provided the following description of the incident:

On December 18, 2007, I was teaching Stacie Woodberry. We were sitting at the table. 

Stacie wasn’t ready to work, so I asked her if she would like to stand or if she would like

to sit. It was a classroom rule that if a student was not ready to work, the student could 

not remain seated at the table. She signed she would sit. I asked her to raise up. She 

raised up out of the chair. I moved the chair to the side. Stacie sat on the floor, which 

was a typical thing that she did.
Moore v. Miller Page 3

school staff immediately following the incident. It was not until she 

arrived home agitated, swollen[,] and crying that her mother rushed her 

without hesitation to the emergency room, where Stacie was diagnosed 

with a dislocated knee, torn ligaments and tendons, damage to the tibia 

(resulting in the insertion of pins and screws), and deep tissue bruising—

all of which were the result of great force.

Furthermore, Stacie has become uncharacteristically combative, 

uncommunicative, and distraught since the incident. This is reflected, 

among other items, by Stacie’s wetting herself regularly—at home and at 

school—and by her inability to sleep at night; instead, she wakes in 

violent, uncontrollable fits causing severe disruption in her home.

Miller asserted claims of negligence, assault, and negligent discipline against Moore.

Moore filed a plea to the jurisdiction asserting, among other things, that: (1) 

Miller failed to exhaust administrative remedies provided in the Somerville 

Independent School District Student Rights and Responsibilities FNG (LOCAL) (“Board 

Policy”), see TEX. EDUC. CODE ANN. § 22.0514 (West 2006) (providing that “[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”); and (2) she is immune from liability because she was a professional 

employee of a school district and the complained-of acts occurred within the scope of 

the duties of her position of employment.

Miller’s response to Moore’s plea to the jurisdiction asserted that: (1) she did 

exhaust her administrative remedies by corresponding to and complaining to the school 

district, but she was not required to comply with the process because the situation fell 

within an exception to the grievance process allowing for complaints regarding the 

discipline of a student with a disability within the scope of the Individuals with 
Moore v. Miller Page 4

Disabilities Education Act (“IDEA”) to bypass the grievance process; and (2) Moore is 

not entitled to statutory immunity because her actions fell within the exception 

provided in section 22.0511(a) of the Education Code, which prohibits immunity for 

complaints regarding the use of excessive force or negligence in the disciplining of a 

student. See id. § 22.0511(a) (West Supp. 2011).

The trial court denied Moore’s plea to the jurisdiction. This interlocutory appeal 

ensued. See TEX. R. APP. P. 28.1(a); see also TEX. CIV. PRAC. & REM. CODE ANN. § 

51.014(a)(8) (West Supp. 2011).

II. PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action 

without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 

34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject-matter 

jurisdiction. Id. Whether the trial court has subject-matter jurisdiction and whether the 

pleader has alleged facts that affirmatively demonstrate the trial court’s subject-matter 

jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The plaintiff has the burden to plead facts affirmatively showing that the trial 

court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 

1993). We construe the pleadings liberally in favor of the pleader, look to the pleader’s 

intent, and accept as true the factual allegations in the pleadings. See Miranda, 133 

S.W.3d at 226, 228. If a plea to the jurisdiction challenges the existence of jurisdictional 

facts, we consider relevant evidence submitted by the parties when necessary to resolve 
Moore v. Miller Page 5

the jurisdictional issues raised, as the trial court is required to do, even those facts 

which may implicate the merits of the cause of action. Id. at 227.

A trial court’s review of a plea to the jurisdiction challenging the existence of 

jurisdictional facts mirrors that of a traditional motion for summary judgment. Id. at 

228; see TEX. R. CIV. P. 166a(c). The governmental unit is required to meet the summary 

judgment standard of proof for its assertion that the trial court lacks jurisdiction. 

Miranda, 133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff 

is then required to show that there is a disputed material fact regarding the 

jurisdictional issue. Id. If the evidence creates a fact question regarding jurisdiction, the 

trial court must deny the plea to the jurisdiction and leave its resolution to the fact 

finder. Id. at 227-28. But, if the evidence is undisputed or fails to raise a fact question 

on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter 

of law. Id. at 228. “In considering this evidence, we ‘take as true all evidence favorable 

to the nonmovant’ and ‘indulge every reasonable inference and resolve any doubts in 

the nonmovant’s favor.’” City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) 

(quoting Miranda, 133 S.W.3d at 228).

III. EXHAUSTION OF ADMINISTRATIVE REMEDIES

In her first issue, Moore alleges that Miller did not exhaust her administrative 

remedies, as outlined in the Board Policy. See In re Entergy Corp., 142 S.W.3d 316, 321-22 

(Tex. 2004) (holding that failure to exhaust requisite administrative remedies before 

filing suit results in lack of subject-matter jurisdiction in trial court). Moore also 

contends that the ninth exception to the Board Policy does not apply because Miller 
Moore v. Miller Page 6

failed to plead or provide evidence establishing entitlement to the exception.

The Board Policy, attached as evidence to Moore’s plea, establishes formal and 

informal procedures for handling “all student and parent complaints.” It contains 

twelve exceptions, including the following: “9. Complaints concerning identification, 

evaluation, educational placement, or discipline of a student with a disability within the 

scope of the Individuals with Disabilities Education Act [“IDEA”] . . . .” The IDEA 

defines a “[c]hild with a disability” as a child “with intellectual disabilities, hearing 

impairments (including deafness), speech or language impairments, visual impairments 

(including blindness), serious emotional disturbance . . . orthopedic impairments, 

autism, traumatic brain injury, other health impairments, or specific learning 

disabilities; and . . . who, by reason thereof, needs special education and related 

services.” 20 U.S.C. § 1401(3)(A). In her third amended petition, Miller pleaded that 

“Stacie is a special education student at Somerville High School who is mentally 

incapacitated; she has been clinically diagnosed with Rubenstein-Taybi Syndrome 

(RSTS), a well-delineated malformation syndrome characterized by facial abnormalities, 

broad thumbs, broad great toes, short stature, and mental retardation”—a 

characterization that is not disputed by Moore. Miller’s description of Stacie’s disability 

appears to fall within the scope of the IDEA. See id. Miller also filed an affidavit in 

which she averred that Stacie’s “disability falls within the scope of the Individuals with 

Disabilities Education Act ... .” Moore did not file any evidence pertaining to Stacie’s 

disability or to whether it falls within the IDEA’s scope; she simply denies that the ninth 
Moore v. Miller Page 7

exception applies and asserts that Miller failed to plead the exception.

2

 But a defendant 

cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a 

fact issue. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

As noted above, we must liberally construe and accept as true the factual 

allegations in Miller’s pleadings. See Miranda, 133 S.W.3d at 226, 228. We also take as 

true all evidence favorable to Miller and indulge every reasonable inference and resolve 

any doubts in her favor. City of Waco, 298 S.W.3d at 622. In applying this standard of 

review, we conclude that Miller pleaded sufficient jurisdictional facts and presented 

some evidence demonstrating that a disputed fact question exists on whether the ninth 

exception applies and that Miller was thus not required to exhaust her administrative 

remedies. Accordingly, we cannot say that the trial court erred in denying Moore’s plea 

to the jurisdiction on the basis of Miller’s alleged failure to exhaust her administrative 

remedies. Moore’s first issue is overruled.

IV. PROFESSIONAL IMMUNITY

In Moore’s second issue, she contends that the trial court erroneously denied her 

plea to the jurisdiction because she had professional immunity. Section 22.0511(a) of 

the Education Code specifically provides that: 

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 

 

2 Moore cites no authority that Miller was required to plead that she had exhausted her administrative 

remedies or that she was excepted from exhausting her administrative remedies. Cf. Ogletree v. Glen Rose 

ISD, 314 S.W.3d 450, 454 (Tex. App.—Waco 2010, pet. denied) (addressing on appeal plaintiff’s assertion 

of futility exception to exhaustion requirement); Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 349 (Tex. 

App.—Eastland 2008, no pet.) (“If a party exhausts its administrative remedies but fails to properly or 

adequately plead this, the challenge is not to the trial court’s jurisdiction but to the adequacy of the 

plaintiff’s pleading.”).
Moore v. Miller Page 8

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.

TEX. EDUC. CODE ANN. § 22.0511(a). Accordingly, immunity afforded by this statute 

requires that the person asserting immunity establish that: (1) he or she is a 

professional employee of a school district; (2) he or she is acting incident to or within

the scope of duties; (3) the act involves the exercise of judgment or discretion; and (4) 

the act does not fall within the stated statutory exceptions. See LeLeaux v. HamshireFannett Indep. Sch. Dist., 835 S.W.2d 49, 52-53 (Tex. 1992); Robinson v. Brannon, 313 

S.W.3d 860, 865 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Here, the parties’

dispute concerns the fourth element: whether Moore’s actions fell within the exception 

pertaining to the use of excessive force in the disciplining of a student or negligence 

resulting in bodily injury to a student.

As noted earlier, Miller pleaded negligence, assault, and negligent discipline 

causes of action. In her pleadings, Miller described the incident as Moore dislodging 

Stacie from her chair and throwing her to the ground because Moore was dissatisfied 

with Stacie’s work. As a result of Moore’s alleged actions, Stacie was diagnosed with 

severe injuries, including a dislocated knee, torn ligaments and tendons, damage to her 

tibia, and deep tissue bruising. Miller pleaded sufficient jurisdictional facts that Moore 

may have used excessive force in the disciplining of Stacie or that Moore’s negligence 

resulted in bodily injury to Stacie.

Moore argues that Miller did not claim that Moore used physical force on Stacie
Moore v. Miller Page 9

or that Moore’s act was part of some discipline. However, in her third amended 

petition, Miller specifically stated that: “Ms. Moore, dissatisfied with Stacie’s work, 

approached Stacie’s chair unexpectedly and aggressively dislodged her from it in a 

disciplinary measure. She threw Stacie hard to the ground.” These pleadings 

adequately allege that Moore used physical force on Stacie as a part of discipline. We 

conclude that Miller pleaded sufficient jurisdictional facts to demonstrate that Moore’s 

alleged actions fall within the excessive-force and negligence exceptions to section 

22.0511(a). We thus cannot say that the trial court erred in denying Moore’s plea to the 

jurisdiction on the basis of Miller’s pleadings.

Pointing to her own affidavit (see footnote 1), Moore also disputes the allegation 

that she dumped Stacie from a chair. Miller filed several affidavits with her response to 

Moore’s plea to the jurisdiction that, at the very least, create a material fact issue with 

regard to the exceptions to professional immunity. In particular, James Keith, an 

individual who was in the class and witnessed the incident, averred that he saw Moore 

forcefully grab the back of Stacie’s chair and dump her on the floor, causing Stacie to 

experience “a lot of pain even though she is not able to express it.” The affidavits of

Kristine Washington and Torian Spencer, two other witnesses, offered similar 

descriptions of the incident.

Because we take as true all evidence favorable to Miller, we conclude that she 

presented some evidence demonstrating that a disputed fact question exists on whether 

Moore’s alleged conduct comes within the excessive-force and negligence exceptions to 

her professional immunity under section 22.0511(a). Moore’s second issue is overruled. 
Moore v. Miller Page 10

V. CONCLUSION

Because we have overruled both of Moore’s issues on appeal, we affirm the trial 

court’s order denying Moore’s plea to the jurisdiction.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray concurring and dissenting)

Affirmed

Opinion delivered and filed February 1, 2012

[CV06]