JOHN STOREY AND WIFE,FROM A DISTRICT COURT LINDA STOREY, INDIVIDUALLY AND AS NEXT FRIENDS OF MEREDITH STOREY, APPELLANTS, v. DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, JUDY COOPER, LYNDA OPTIZ AND ED STEVENS, APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00613-CV
JOHN STOREY AND WIFE,FROM A DISTRICT COURT
LINDA STOREY, INDIVIDUALLY
AND AS NEXT FRIENDS OF
MEREDITH STOREY,
 
        APPELLANTS,
 
v.
 
DUNCANVILLE INDEPENDENT
SCHOOL DISTRICT, JUDY COOPER,
LYNDA OPTIZ AND ED STEVENS,
 
        APPELLEES. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WHITHAM AND BURNETT
OPINION BY JUSTICE BURNETT
MARCH 3, 1989
        This is an appeal of a summary judgment rendered against John Storey and wife, Linda Storey, individually and as next friends of Meredith Storey, and in favor of Duncanville Independent School District, Judy Cooper, Lynda Opitz, and Ed Stevens. In two points of error, the Storeys contend that the summary judgment was in error because the defendants did not affirmatively plead immunity and the pleadings clearly state a cause of action.
        Meredith Storey was a fourth grade student at Acton Elementary School in Duncanville, Texas. Dissatisfied with the classroom performance of Meredith's teacher, Judy Cooper, the parents met with the school principal, Lynda Ortiz, and the superintendent, Ed Stevens, to seek a transfer for Meredith to another classroom. Unsuccessful, the Storeys then filed suit alleging improper instructional techniques and requesting injunctive relief. Subsequent events rendered moot the injunctive relief prior to the summary judgment hearing. Additionally, the parents claimed these instructional techniques constituted intentional infliction of emotional distress upon Meredith. The Storeys also claimed that Stevens had attempted to restrain their free speech by discouraging them from filing suit or signing a petition against Cooper.
        Section 21.912(b) of the Education Code states that:
 
 
                No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.
This immunity statute defines a professional employee to include "superintendents, principals, classroom teachers, supervisors, counselors, and any other person whose employment requires certification and an exercise of discretion." TEX. EDUC. CODE ANN. § 21.912 (Vernon 1987). During oral argument, the Storeys waived their first point of error which asserted that the school parties failed to affirmatively assert the defense of immunity. Thus, we shall not consider the first point.
        In their second point of error, the Storeys contend that the trial court erred in granting summary judgment because the pleadings state a cause of action. The Storeys asserted two causes of action in their original petition. One for intentional emotional distress inflicted upon Meredith by Cooper's instructional techniques. Second, the Storeys asserted that the first amendment right to free speech was violated by Stevens when he discouraged their signing the petition and filing this lawsuit.
        During oral argument, the school parties conceded that the pleadings state a cause of action against Cooper for intentional infliction of emotional distress. For the purposes of this opinion, we assume, but do not decide, that the Storeys' pleadings state such a cause of action. Nevertheless we conclude that the pleadings show on their face that Cooper was performing a discretionary activity within the scope of her employment, that is, teaching her class. Facts alleged by a party are accepted as true by the court. In the absence of an amendment by the party which made them, alleged facts cannot be contradicted by the pleader. Beta Supply, Inc. v. G.E.A. Power Cooling Systems, Inc. 748 S.W.2d 541, 542 (Tex. App.--Houston [1st Dist.] 1988, writ denied). We conclude, therefore, that under the facts plead by the Storeys, Cooper is protected by the
immunity statute. See Diggs v. Bales, 667 S.W.2d 916, 918 (Tex. App.--Dallas 1984, no writ). Thus, we conclude further that the summary judgment was proper as to the action against Cooper.
        The other cause of action was against the principal, the superintendent, and the school district for a violation of the first amendment free speech guarantees which the Storeys allege resulted in emotional distress. In their motion for summary judgment, the school parties urged that the immunity statute bars recovery and thus summary judgment was proper. We must determine if the school district principal and superintendent are entitled to a summary judgment as a matter of law for the reason asserted in their motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 679 (Tex. 1979). We cannot agree with the school parties that a violation of first amendment principles is within the scope of duties intended to be protected by the immunity statute. We do not reach the question of whether or not the facts as alleged by the Storeys constitute a consitutional violation. Instead, we hold that the motion for summary judgment based on immunity does not support such a judgment in favor of the appellees with regard to the constitutional claim.
        Accordingly, we affirm the summary judgment as to Cooper and reverse and remand the constitutional claim against the Duncanville Independent School District, Lynda Optiz, and Ed Stevens.
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00613.F
 
Dissenting and Concurring Opinion by Justice Whitham
 
 
File Date[01-02-89]
File Name[880613]