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.