Heriberto D. Gonzalez v. Salvador Johnson, Sr. ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00516-CV
Heriberto D. GONZALEZ,
Appellant
v.
Salvador JOHNSON, Sr. and Amy Marshall,
Appellees
From the County Court at Law No. 2, Webb County, Texas
Trial Court No. 2019CVH002459C3
Honorable Victor Villarreal, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: October 27, 2021
REVERSED AND RENDERED
Heriberto D. Gonzalez, the superintendent of Webb County Independent School District
(“WCISD”), appeals from the trial court’s order denying his motion for summary judgment on the
basis of the professional immunity defense pursuant to section 22.0511 of the Texas Education
Code. 1 We reverse and render.
1
Appellees did not file a brief.
04-20-00516-CV
BACKGROUND
In the underlying cause, Appellees Salvador Johnson, Sr. and Amy Marshall sued Gonzalez
for breach of an oral contract and promissory estoppel. They alleged that Gonzalez “represented
and agreed with Plaintiffs that [Gonzalez] would contribute the amount of up to ten thousand
($10,000.00) dollars for the purchase of animals raised by agricultural students to be sold at the
L.I.F.E. 2 auction.” Appellees further alleged that Gonzalez “authorized [them] to purchase such
animals as [they] should determine to the extent of ten thousand ($10,000.00) on [Gonzalez]’s
behalf.” “In reliance upon [Gonzalez]’s representations and agreement,” Johnson “purchased
animals at the auction held on March 3, 2019, on behalf of [Gonzalez] to the extent of” $10,476.44.
Appellees alleged that Gonzalez “failed and refused to pay L.I.F.E. the agreed upon amount.”
Thus, appellees alleged that Gonzalez breached his oral agreement with them “to contribute the
agreed upon amount towards the purchase price of the animals,” and appellees “were required to
pay said amount to L.I.F.E. out of their own funds.”
Appellees further alleged in the alternative that Gonzalez was liable on the basis of
promissory estoppel. They alleged Gonzalez made a promise to them upon which they reasonably
and substantially relied. Appellees acknowledged that Gonzalez is the superintendent of WCISD
but alleged that “at all relevant times” they were dealing with Gonzalez “solely in his individual
capacity” and did “not in any way seek to implicate and/or recover from WCISD by way of [the
lawsuit].”
In response to the lawsuit, Gonzalez filed a traditional motion for summary judgment
asserting the statutory defense of professional immunity as set out in section 22.0511 of the Texas
Education Code, arguing that appellees were suing him for actions “incident to or within the scope
2
L.I.F.E. stands for the Laredo International Fair and Exposition.
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of his duties” as superintendent. After considering Gonzalez’s motion and the appellees’ response,
the trial court denied the motion for summary judgment. Gonzalez then filed this interlocutory
appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(5) (interlocutory appeal permitted from an
order that “denies a motion for summary judgment that is based on an assertion of immunity by an
individual who is an officer or employee of the state or a political subdivision of the state”).
DISCUSSION
In filing a traditional motion for summary judgment asserting the statutory defense of
professional immunity, Gonzalez had the burden to show that no genuine issue of material fact
exists and that he was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548 (Tex. 1985); see TEX. R. CIV. P. 166a(c). The professional immunity defense
pursuant to section 22.0511 of the Texas Education Code 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 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 § 22.0511(a) (emphasis added). Section 22.051 specifically states that a
superintendent is included within the term “professional employee of a school district.” Id.
§ 22.051(a)(1). “Whether one is acting within the scope of his employment depends upon whether
the general act from which injury arose was in furtherance of the employer’s business and for the
accomplishment of the object for which the employee was employed.” Chesshir v. Sharp, 19
S.W.3d 502, 505 (Tex. App.—Amarillo 2000, no pet.). Thus, the issue is whether appellees’
allegations are incident to or within the scope of a superintendent’s duties.
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A superintendent’s duties, as set out in the Education Code, include the following:
(1) assuming administrative responsibility and leadership for
the planning, organization, operation, supervision, and
evaluation of the education programs, services, and facilities
of the district and for the annual performance appraisal of
the district’s staff;
(2) except as provided by Section 11.202, assuming
administrative authority and responsibility for the
assignment, supervision, and evaluation of all personnel of
the district other than the superintendent;
(3) overseeing compliance with the standards for school
facilities established by the commissioner under Section
46.008;
(4) initiating the termination or suspension of an employee or
the nonrenewal of an employee’s term contract;
(5) managing the day-to-day operations of the district as its
administrative manager, including implementing and
monitoring plans, procedures, programs, and systems to
achieve clearly defined and desired results in major areas of
district operations;
(6) preparing and submitting to the board of trustees a proposed
budget as provided by Section 44.002 and rules adopted
under that section, and administering the budget;
(7) preparing recommendations for policies to be adopted by the
board of trustees and overseeing the implementation of
adopted policies;
(8) developing or causing to be developed appropriate
administrative regulations to implement policies established
by the board of trustees;
(9) providing leadership for the attainment and, if necessary,
improvement of student performance in the district based on
the indicators adopted under Sections 39.053 and 39.301 and
other indicators adopted by the commissioner or the
district’s board of trustees;
(10) organizing the district’s central administration;
(11) consulting with the district-level committee as required
under Section 11.252(f);
(12) ensuring:
(A) adoption of a student code of conduct as required under
Section 37.001 and enforcement of that code of conduct;
and
(B) adoption and enforcement of other student disciplinary
rules and procedures as necessary;
(13) submitting reports as required by state or federal law, rule,
or regulation, and ensuring that a copy of any report required
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by federal law, rule, or regulation is also delivered to the
agency;
(14) providing joint leadership with the board of trustees to
ensure that the responsibilities of the board and
superintendent team are carried out; and
(15) performing any other duties assigned by action of the board
of trustees.
TEX. EDUC. CODE § 11.201. Together, a board and superintendent shall:
1. Advocate for the high achievement of all district students;
2. Create and support connections with community organizations to provide
community-wide support for the high achievement of all district students;
3. Provide educational leadership for a district, including leadership in developing
the district vision statement and long-range educational plan;
4. Establish district-wide policies and annual goals that are tied directly to the
district’s vision statement and long-range educational plan;
5. Support the professional development of principals, teachers, and other staff;
and
6. Periodically evaluate board and superintendent leadership, governance, and
teamwork.
Id. § 11.1512(b) (emphasis added).
In addition to these vast statutory duties, the WCISD Board Policy Manual is publicly
available and assigns ten additional duties under “Educational Leadership”; 3 fourteen additional
3
To provide leadership and direction for the development of an educational system that is based on the needs of
students, on standards of excellence and equity, and on community goals, the Superintendent shall:
1. Establish effective mechanisms for communication to and from staff in instructional
evaluation, planning, and decision making.
2. Oversee annual planning for instructional improvement and monitor for effectiveness.
3. Ensure that goals and objectives form the basis of curricular decision making and
instruction and communicate expectations for high achievement.
4. Ensure that appropriate data are used in developing recommendations and making
decisions regarding the instructional program and resources.
5. Oversee a system for regular evaluation of instructional programs, including identifying
areas for improvement, to attain desired student achievement.
6. Oversee student services, including health and safety services, counseling services, and
extracurricular programs, and monitor for effectiveness.
7. Oversee a discipline management program and monitor for equity and effectiveness.
8. Encourage, oversee, and participate in activities for recognition of student efforts and
accomplishments.
9. Oversee a program of staff development and monitor staff development for effectiveness
in improving district performance.
10. Stay abreast of developments in educational leadership and administration.
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duties under “District Management”; 4 and seven additional duties under “Board and Community
Relations.” Under Board and Community Relations, the superintendent is required “[t]o maintain
positive and professional working relationships with the Board and the community by” having the
following duties:
1. Keep the Board informed of significant issues as they arise, using agreed upon
criteria and procedures for information dissemination.
2. Respond in a timely and complete manner to Board requests for information
that are consistent with Board policy and established procedures.
3. Provide recommendations and appropriate supporting materials to the Board on
matters for Board decision.
4. Articulate and support Board policy and decisions to staff and community.
WCISD Board Policy Manual, Policy BJA(Local): Superintendent Qualifications and Duties, available
at https://pol.tasb.org/Policy/Download/1211?filename=BJA(LOCAL).pdf.
4
To demonstrate effective planning and management of District administration, finances, operations, and personnel,
the Superintendent shall:
1. Implement and oversee a planning process that results in goals, targets, or priorities for all
major areas of District operations, including facilities maintenance and operations,
transportation, and food services.
2. Monitor effectiveness of District operations against appropriate benchmarks.
3. Oversee procedures to ensure effective and timely compliance with all legal obligations,
reporting requirements, and policies.
4. Ensure that key planning activities within the District are coordinated and are consistent
with Board policy and applicable law and that goals and results are communicated to staff,
students, and the public as appropriate.
5. Oversee a budget development process that results in recommendations based on District
priorities, available resources, and anticipated changes to district finances.
6. Oversee budget implementation to ensure appropriate expenditure of budgeted funds, to
provide for clear and timely budget reports, and to monitor for effectiveness of the process.
7. Ensure that District investment strategies, risk management activities, and purchasing
practices are sound, cost-effective, and consistent with District policy and law.
8. Maintain a system of internal controls to deter and monitor for fraud or financial
impropriety in the District.
9. Ensure that the system for recruiting and selection results in personnel recommendations
based on defined needs, goals, and priorities.
10. Organize District staff in a manner consistent with District priorities and resources and
monitor administrative organization at all levels for effectiveness and efficiency.
11. Oversee a performance appraisal process for all staff that reinforces a standard of
excellence and assesses deficiencies; ensure that results are used in planning for
improvement.
12. Administer a compensation and benefits plan for employees based on clearly defined goals
and priorities.
13. Encourage, oversee, and participate in staff recognition and support activities.
14. Oversee a program for staff retention and monitor for effectiveness.
WCISD Board Policy Manual, Policy BJA(Local): Superintendent Qualifications and Duties, available
at https://pol.tasb.org/Policy/Download/1211?filename=BJA(LOCAL).pdf.
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5. Direct a proactive program of internal and external communication at all levels
designed to improve staff and community understanding and support of the
District.
6. Establish mechanisms for community and business involvement in the schools
and encourage participation.
7. Work with other governmental entities and community organizations to meet
the needs of students and the community in a coordinated way.
WCISD Board Policy Manual, Policy BJA(Local): Superintendent Qualifications and Duties,
available at https://pol.tasb.org/Policy/Download/1211?filename=BJA(LOCAL).pdf (emphasis
added).
The summary judgment evidence in the record shows that the L.I.F.E. auction is held
annually, and every year WCISD students from the Future Farmers of America (“FFA”) program
participate. WCISD students raise animals and show them at the L.I.F.E. auction. The L.I.F.E.
auction at issue in the underlying case was held on March 2, 2019. Gonzalez testified in his
deposition that six months prior to that auction, he talked to board members “about the prospect
for funds coming in from AT&T to our Ag Science program.” According to Gonzalez, there was
“the groundbreaking of a wind energy program or project in which AT&T representatives
participated and announced they were taking over the wind energy project and were willing to
work with [WCISD] . . . student programs in general.” “AT&T was the sponsor since they had
purchased the project.” Gonzalez was present at the event because he had been asked to attend;
there were no board members present. Gonzalez testified that “at that event, the AT&T
representative stated that they would look to support our Ag Science program through a foundation
donation of the sort.” According to Gonzalez, the AT&T national foundation director said to him,
‘Hey, we’d love to send some funds your way.’” Gonzalez testified AT&T “pledged some amount
of donation to the Ag Science program,” “which includes windmill technology.” Gonzalez testified
that he did not recall the amount of the AT&T pledge but stated that it had nothing to do with the
L.I.F.E. auction.
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With regard to the L.I.F.E. auction, Gonzalez testified that he “remember[ed] responding
to questions from Mr. Marshall about whether donations were going to come into the Ag Science
program and whether we could leverage that or somehow petition and use that for some of the
student projects.” According to Gonzalez, Robert Marshall was “interested in getting money in to
pay for the training boards for the Ag Science wind energy program.” Later, Marshall asked
Gonzalez, “Hey, maybe we can use some of that money for, you know—g[et] permission to use
some of that [money] for the student projects, the animals at the fair.” When asked whether Amy
or Robert Marshall asked him to contact AT&T to raise money for the L.I.F.E. auction, Gonzalez
replied that he was asked to see if AT&T would come through with its pledge. According to
Gonzalez, Robert Marshall asked him, “Hey, any news from AT&T?” Gonzalez replied, “No. Let
me ask again.” Gonzalez clarified that the written petition he submitted was not only for funds for
the L.I.F.E. auction but was also directed to funds for WCISD’s Ag Science program. Gonzalez
testified that when he spoke with the Marshalls over the telephone, “[g]enerally, the topic was
‘Hey, you know, can you check to see if they’re going to give us some money?’” Gonzalez replied,
“Sure, I’ll continue to check. I’ll continue to press and see what I can do.”
Gonzalez stated that he “remember[ed] sharing with [Mr. Marshall] that [Gonzalez] would
make that [written] petition . . . to AT&T,” “which ultimately . . . was denied.” According to
Gonzalez, when he inquired with AT&T, he was asked by the regional director of AT&T, Lydia
Zapata, to “submit a petition on behalf of the district.” Zapata told him that the AT&T budget “was
tight during the legislative session” and that “their foundational monies were being directed
towards lobbying and advocacy work with the legislative summit.” But, she encouraged him to
submit a request on behalf of WCISD that she would then submit. Gonzalez testified he was
“merely, at the request of the board members, reaching out to [AT&T], reminding [AT&T] that
they said that they were going to share some funds with us.” Gonzalez’s written proposal was
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denied by AT&T. When asked if he ever, as a private individual, attempted to fundraise, Gonzalez
replied, “No, sir. I don’t have any relationships with anybody here outside of my
superintendentency [sic].”
In his deposition, Appellee Salvador Johnson testified he filed this lawsuit because he was
under the impression that Gonzalez had talked to AT&T about contributing funds for the L.I.F.E.
auction. He admitted that he never spoke with Gonzalez or anyone at AT&T. He explained his
daughter was Amy Marshall, and they, as a family, had for the past fifteen years asked “certain
people or certain companies to help us . . . with money to bid for some of the animals” at the
L.I.F.E. auction. He testified his understanding of the agreement with AT&T came from his
conversations with his daughter. At the auction, he placed a bid for “AT&T Wind Energy” in the
amount of $10,476.44 and signed as an “authorized representative.” When AT&T did not pay,
Johnson paid $5,000 and his daughter, Amy, paid $5,476.44.
In response to Gonzalez’s motion for summary judgment, Robert Marshall and Amy
Marshall filed affidavits. They affirm in their affidavits that in mid-September 2018, they
telephoned Gonzalez and asked if he would be willing to ask his friend at AT&T if AT&T would
donate money for the projects at the L.I.F.E. auction. In mid-October, they called Gonzalez on
speaker phone and asked if he had talked to his friend at AT&T about the L.I.F.E. auction.
According to both affidavits, Gonzalez said he had talked to his friend at AT&T, and they agreed
to donate $10,000 to $15,000.
The summary judgment evidence is undisputed that students from WCISD participated in
the L.I.F.E. auction, and the money solicited from AT&T was to support their projects through
FFA, which is a school-sponsored agricultural science program. It is also undisputed that Gonzalez
met a representative from AT&T who expressed interest in AT&T donating money to WCISD to
support WCISD students. The affidavits of Amy and Robert Marshall characterizing this AT&T
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representative as Gonzalez’s “friend” do not create a fact-issue regarding the substance of the
conversation between Gonzalez and the AT&T representative. It is also undisputed that Gonzalez
only spoke with Amy and Robert Marshall, WCISD Board Members, about the AT&T donation.
All parties admit Gonzalez never spoke with Johnson, the person who made the bid at the auction,
about the AT&T donation. Although the L.I.F.E. auction was not a school-sponsored event and
fundraising is not a superintendent duty, we hold the summary judgment evidence shows that
Gonzalez’s actions, as alleged by the appellees, were incident to his duty to “[c]reate and support
connections with community organizations to provide community-wide support for the high
achievement of all district students,” see TEX. EDUC. CODE § 11.1512(b), and his duty under the
WCISD Board Policy Manual to “[e]stablish mechanisms for community and business
involvement in the schools and encourage participation,” see WCISD Board Policy Manual, Policy
BJA(Local): Superintendent Qualifications and Duties, available at
https://pol.tasb.org/Policy/Download/1211?filename=BJA(LOCAL).pdf. We emphasize that
under section 22.0511’s professional immunity provision, the alleged acts of the superintendent
need only be incident to the scope of the superintendent’s duties. See TEX. EDUC. CODE
§ 22.0511(a). 5
Having held that section 22.0511’s professional immunity provision applies, we note that
the allegations in appellees’ petition relate to claims for breach of an oral contract and promissory
estoppel. The Legislature has not waived immunity for either of these claims. See TEX. LOC. GOV’T
CODE §§ 271.151, 271.152 (waiving immunity for certain written contracts, not oral contracts);
5
We note that section 22.0511 also requires the acts alleged by the professional employee of a school district to
“involve[] 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 § 22.0511(a). The summary judgment evidence is clear that the acts alleged by Gonzalez
involve the exercise of his judgment or discretion. See id. Further, there is no evidence or allegation that any act of
Gonzalez related to excessive force in the discipline of students or negligence resulting in bodily injury to students.
See id.
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Gay v. City of Wichita Falls, 457 S.W.3d 499, 507 (Tex. App.—El Paso 2014, no pet.) (explaining
no waiver of immunity for breach of oral contract or promissory estoppel claims). Accordingly,
section 22.0511’s professional immunity provision bars appellees’ breach of oral contract and
promissory estoppel claims against Gonzalez.
Nonetheless, we note that appellees have specifically pled in their petition that they are
suing Gonzalez only in his individual capacity and not his official capacity as superintendent.
However, as explained above, appellees do not allege any facts illustrating that their claims are
based on acts other than those incident to his duties as superintendent. See Edinburg Consol. Indep.
Sch. Dist. v. Smith, No. 13-16-00253-CV, 2016 WL 3068119, at *9-*10 (Tex. App.—Corpus
Christi-Edinburg 2016, no pet.); see also TEX. EDUC. CODE § 22.0511(a) (holding professional
employee is not personally liable). Accordingly, their claims against Gonzalez in his individual
capacity are also barred. See Edinburg Consol. Indep. Sch. Dist., 2016 WL 3068119, at *9-*10.
CONCLUSION
For the reasons stated above, we hold that the summary judgment evidence shows
Gonzalez is entitled to the statutory immunity defense pursuant to section 22.0511 of the Texas
Education Code. We therefore reverse the order of the trial court and render judgment that Salvador
Johnson, Sr. and Amy Marshall take nothing from Heriberto D. Gonzalez. See Lane v. Young, No.
09-06-00260-CV, 2007 WL 63660, at *5 (Tex. App.—Beaumont 2007, no pet.) (reversing and
rendering take-nothing judgment on the basis of section 22.0511 professional immunity defense);
see also Kobza v. Kutac, 109 S.W.3d 89, 91 (Tex. App.—Austin 2003, pet. denied).
Liza A. Rodriguez, Justice
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