Teresa Venegas, individually and as next friend of Francisco Venegas III v. J. R. Silva--Appeal from 385th District Court of Midland County

Opinion filed September 21, 2006

In The

Eleventh Court of Appeals

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   No. 11-04-00246-CV

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TERESA VENEGAS, INDIVIDUALLY AND AS NEXT FRIEND OF

FRANCISCO VENEGAS III, Appellant

V.

J. R. SILVA, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CV-44,369

M E M O R A N D U M O P I N I O N

Plaintiff, Teresa Venegas, individually and as next friend of Francisco Venegas III, filed suit against J. R. Silva, a Midland ISD employee, alleging that Silva used excessive force in disciplining Francisco.[1] Silva filed a plea to the jurisdiction based upon plaintiff=s failure to exhaust her administrative remedies. The trial court granted Silva=s plea and dismissed the case without prejudice. We affirm.

In her sole issue on appeal, plaintiff argues that the trial court erred in granting the plea to the jurisdiction and dismissing the action without first abating it and allowing her to cure the jurisdictional defect. We disagree. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to the merits of the claim. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In deciding a plea to the jurisdiction, a court must not weigh the merits of the claim but should consider only the plaintiff=s pleadings and the evidence pertinent to the jurisdictional inquiry. Countyof Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Because the question of subject matter jurisdiction is a legal question, we review the trial court=s ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); see also Tex. Dep=t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004).

The unchallenged findings of fact and conclusions of law show that, at the time of the incident, Silva was employed as an assistant principal at Midland ISD and that Midland ISD had a policy that established the procedures for parent and student grievances. The school policy provided for three levels of proceedings. Plaintiff followed the procedures for the first two levels but failed to present her grievance to the board of trustees as required in the third level.

As the trial court concluded, plaintiff failed to exhaust the administrative remedies available to her prior to filing suit in the district court. A claimant must exhaust the requisite administrative remedies prior to filing suit in district court. Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex. App.CTyler 1997, pet. denied) (suit against teacher for use of excessive force); see also Hicks v. Lamar Consol. Indep. Sch. Dist., 943 S.W.2d 540 (Tex. App.CEastland 1997, no writ). The court in Grimes held under similar facts that the complainants were required to exhaust their administrative remedies before resorting to the judiciary for resolution. 957 S.W.2d at 869. Likewise, we hold that plaintiff was required to exhaust her administrative remedies before seeking a resolution in the courts.[2]

Plaintiff does not assert that she exhausted her administrative remedies but, rather, that she still has time to exhaust those remedies because limitations periods are tolled for claims belonging to minors. Plaintiff cites Tex. Civ. Prac. & Rem. Code Ann. ' 16.001 (Vernon 2002) in support of her argument. That section is not applicable to this case; it applies only to cases under that subchapter. See Martinez v. Val Verde County Hosp. Dist., 140 S.W.3d 370, 372 (Tex. 2004). Martinez involved the medical malpractice claim of a minor patient against a county hospital. The supreme court concluded that the six-month period for giving notice of a claim against a governmental unit applied despite the patient=s minority and that, absent tolling statutes such as Section 16.001(a), the regular time periods would apply to minors. Id. We can find no tolling statute or other authority to support plaintiff=s position regarding the tolling of limitations with respect to the exhaustion of administrative remedies in the present case.

The failure to exhaust the requisite administrative remedies prior to filing suit results in a lack of subject matter jurisdiction in the trial court. In re Entergy Corp., 142 S.W.3d 316, 321-22 (Tex. 2004). When a trial court lacks subject matter jurisdiction, dismissal is appropriate. Id.; see also Thomas v. Long, No. 03-0204, 2006 WL 1043429 (Tex. April 21, 2006). Plaintiff=s failure to exhaust her administrative remedies resulted in the trial court having no subject matter jurisdiction, and plaintiff has not shown that the impediment to jurisdiction could be removed. Consequently, we hold that dismissal was appropriate in this case. Plaintiff=s issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

September 21, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]See former Tex. Educ. Code ' 22.051 (1995), which was in effect in 2002 at the time of the alleged occurrence in this case. That section was amended and renumbered effective September 1, 2003. Tex. Educ. Code Ann. ' 22.0511 (Vernon 2006) is the current version.

[2]We note that the current version of the Education Code explicitly provides, AA 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.@ Tex. Educ. Code Ann. ' 22.0514 (Vernon 2006). However, Section 22.0514 was not in effect at the time of the incident involved in the present case.