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2003S0484-1 03/05/03
By: Shapiro S.B. No. 930
A BILL TO BE ENTITLED
AN ACT
relating to the liability of school employees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 22, Education Code, is
amended by amending Section 22.051 and adding Sections 22.0511
through 22.0517 to read as follows:
Sec. 22.051. DEFINITION. In this subchapter, "professional
employee of a school district" includes:
(1) a superintendent, principal, teacher, supervisor,
social worker, counselor, nurse, and teacher's aide employed by a
school district;
(2) a teacher employed by a company that contracts
with a school district to provide the teacher's services to the
district;
(3) a student in an education preparation program
participating in a field experience or internship;
(4) a school bus driver certified in accordance with
standards and qualifications adopted by the Department of Public
Safety of the State of Texas; and
(5) any other person employed by a school district
whose employment requires certification and the exercise of
discretion.
Sec. 22.0511. IMMUNITY FROM LIABILITY [FOR PROFESSIONAL
EMPLOYEES]. (a) 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.
(b) This section does not apply to the operation, use, or
maintenance of any motor vehicle.
(c) In addition to the immunity provided under this section
and under other provisions of state law, an individual is entitled
to any immunity and any other protections afforded under the Paul D.
Coverdell Teacher Protection Act of 2001 (20 U.S.C. Section 6731 et
seq.), as amended. Nothing in this subsection shall be construed to
limit or abridge any immunity or protection afforded an individual
under state law. For purposes of this subsection, "individual"
includes a person who provides services to private schools, to the
extent provided by federal law [this section, "professional
employee" includes:
[(1) a superintendent, principal, teacher,
supervisor, social worker, counselor, nurse, and teacher's aide;
[(2) a student in an education preparation program
participating in a field experience or internship;
[(3) a school bus driver certified in accordance with
standards and qualifications adopted by the Department of Public
Safety; and
[(4) any other person whose employment requires
certification and the exercise of discretion].
Sec. 22.0512. IMMUNITY FROM DISCIPLINARY PROCEEDINGS FOR
PROFESSIONAL EMPLOYEES. (a) A professional employee of a school
district may not be subject to disciplinary proceedings for the
employee's use of physical force against a student to the extent
justified under Section 9.62, Penal Code.
(b) In this section, "disciplinary proceeding" means:
(1) an action brought by the school district employing
a professional employee of a school district to discharge or
suspend the employee or terminate or not renew the employee's term
contract; or
(2) an action brought by the State Board for Educator
Certification to enforce the educator's code of ethics adopted
under Section 21.041(b)(8).
Sec. 22.0513. NOTICE OF CLAIM. (a) Not later than the 90th
day before the date a person files a suit against a professional
employee of a school district, the person must give written notice
to the employee of the claim, reasonably describing the incident
from which the claim arose.
(b) A professional employee of a school district against
whom a suit is pending who does not receive written notice, as
required by Subsection (a), may file a plea in abatement not later
than the 30th day after the date the person files an original answer
in the court in which the suit is pending.
(c) The court shall abate the suit if the court, after a
hearing, finds that the person is entitled to an abatement because
notice was not provided as required by this section.
(d) An abatement under Subsection (c) continues until the
90th day after the date that written notice is given to the
professional employee of a school district as provided by
Subsection (a).
Sec. 22.0514. EXHAUSTION OF REMEDIES. 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.
Sec. 22.0515. LIMITATION ON DAMAGES. (a) Subject to
Subsection (b), the liability of a professional employee of a
school district for an act incident to or within the scope of duties
of the employee's position of employment may not exceed $100,000.
The limitation on liability provided by this subsection does not
apply to any attorney's fees or court costs that may be awarded
against the professional employee under Section 22.0517.
(b) The limitation on liability provided by Subsection (a)
does not apply if the actions of the professional employee of a
school district constitute gross negligence.
Sec. 22.0516. ALTERNATIVE DISPUTE RESOLUTION. A court in
which a judicial proceeding is being brought against a professional
employee of a school district may refer the case to an alternative
dispute resolution procedure as described by Chapter 154, Civil
Practice and Remedies Code.
Sec. 22.0517. RECOVERY OF ATTORNEY'S FEES IN ACTION AGAINST
PROFESSIONAL EMPLOYEE. In an action against a professional
employee of a school district based on an allegation that the
employee physically abused a student, the employee is entitled to
recover attorney's fees and court costs from the plaintiff if the
employee substantially prevails.
SECTION 2. Subsection (a), Section 22.053, Education Code,
is amended to read as follows:
(a) A volunteer who is serving as a direct service volunteer
of a school district is immune from civil liability to the same
extent as a professional employee of a school district under
Section 22.0511 [22.051].
SECTION 3. Subsection (c), Section 30.024, Education Code,
is amended to read as follows:
(c) In addition to any other federal and state statutes
limiting the liability of employees at the school, Sections
22.0511, 22.0512 [22.051], 22.052, and 22.053, respectively, apply
to professional employees and volunteers of the school.
SECTION 4. Subsection (c), Section 30.055, Education Code,
is amended to read as follows:
(c) In addition to any other federal and state statutes
limiting the liability of employees at the school, Sections
22.0511, 22.0512 [22.051], 22.052, and 22.053, respectively, apply
to professional employees and volunteers of the school.
SECTION 5. Subsection (e), Section 105.301, Education Code,
is amended to read as follows:
(e) The academy is not subject to the provisions of this
code, or to the rules of the Texas Education Agency, regulating
public schools, except that:
(1) professional employees of the academy are entitled
to the limited liability of an employee under Section 22.0511,
22.0512, [22.051] or 22.052;
(2) a student's attendance at the academy satisfies
compulsory school attendance requirements; and
(3) for each student enrolled, the academy is entitled
to allotments from the foundation school program under Chapter 42
as if the academy were a school district, except that the academy
has a local share applied that is equivalent to the local fund
assignment of the Denton Independent School District.
SECTION 6. The change in law made by this Act applies only
to a suit for damages or a school employee disciplinary proceeding
involving conduct that occurs on or after September 1, 2003. A suit
for damages or a school employee disciplinary proceeding involving
conduct that occurs before September 1, 2003, is governed by the law
in effect on the date the conduct occurs, and the former law is
continued in effect for that purpose.
SECTION 7. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are declared to be severable.
SECTION 8. This Act takes effect September 1, 2003.