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DGC Employee Rights and Privileges: Immunity

IMMUNITY FROM INDIVIDUAL LIABILITY

The statutory immunity detailed below is in addition to and does not preempt the common law doctrine of official and governmental immunity.  Education Code 22.051(b)

Professional Employees

A professional employee of the School 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, except in circumstances where, in disciplining a student, the employee uses excessive force or his or her negligence results in bodily injury to the student.

“Professional employee” includes a superintendent; principal; teacher, including a substitute teacher or a teacher employed by a company that contracts with the School to provide the teacher’s services to the School; a supervisor; social worker; counselor; nurse; teacher’s aide; a student in an education preparation program participating in a field experience or internship; a DPS-certified school bus driver, and any other person whose employment requires certification and the exercise of discretion.

Education Code 30.024(c)

Motor Vehicle Exception

Education Code Section 22.0511 does not apply to the operation, use, or maintenance of any motor vehicle.  Education Code 22.0511(a)–(b), 22.051; Hopkins v. Spring ISD, 736 S.W.2d 617 (Tex. 1987); Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978)

Individuals

In addition to the immunity described above [at PROFESSIONAL EMPLOYEES], 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 (Coverdell Act). [See TEACHERS, below] Nothing in Education Code 22.0511(c) shall be construed to limit or abridge any immunity or protection afforded an individual under state law.  Education Code 22.0511(c)

No Waiver

The School may not, by policy, contract, or administrative directive:

  1. Require an employee to waive the employee’s immunity from liability under Education Code 22.0511 or
  2. Require an employee who acts in good faith to pay for or replace property belonging to a student or other person that the employee possessed because of an act incident to or within the scope of employment.

[See TEXTBOOKS AND TECHNOLOGICAL EQUIPMENT, below]  Education Code 22.0511(d); 30.024(c)

TEACHERS (COVERDELL TEACHER PROTECTION ACT)

Except as provided in 20 U.S.C. Section 7946(b), no “teacher” in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if:

  1. The teacher was acting within the scope of the teacher’s employment or responsibilities to a school or governmental entity;
  2. The actions of the teacher were carried out in conformity with federal, state, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
  3. If appropriate or required, the teacher was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice involved in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher’s responsibilities;
  4. The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher; and
  5. The harm was not caused by the teacher’s operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to:
    1. Possess an operator’s license; or
    2. Maintain insurance.

“Teacher” means:

  1. A teacher, instructor, principal, or administrator;
  2. Another educational professional who works in a school;
  3. An individual member of a school board (as distinct from the board); or
  4. A professional or nonprofessional employee who works in a school, and:
    1. In the employee’s job, maintains discipline or ensures safety; or
    2. In an emergency, is called on to maintain discipline or ensure safety.

20 U.S.C. Section 7943, 7946

REPORT OF DRUG OFFENSES

A teacher, administrator, or other TSBVI employee is not liable in civil damages for reporting to a school administrator or governmental authority, in the exercise of professional judgment within the scope of the teacher’s, administrator’s, or employee’s duties, a student whom the teacher suspects of using, passing, or selling, on school property any of the following substances:

  1. Marijuana or a controlled substance, as defined by the Texas Controlled Substances Act.
  2. A dangerous drug, as defined by the Texas Dangerous Drug Act.
  3. An abusable glue or aerosol paint, as defined by Health and Safety Code Chapter 485, or a volatile chemical, if the substance is used or sold for the purpose of inhaling its fumes or vapors.
  4. An alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

Education code 37.016

REPORT TO LOCAL LAW ENFORCEMENT

The Principal or person designated by the principal is not liable in civil damages for making a good faith report to law enforcement, as required by law, of an activity specified at Education Code 37.015. Education Code 37.015 [See GRAA]

CHILD ABUSE AND MALTREATMENT

The requirements of Education Code 38.0041 [regarding prevention of abused and other maltreatment of children, see FFG] are considered to involve an employee’s judgment and discretion and are not considered ministerial acts of purposes of immunity for liability under Education Code 22.0511 [see IMMUNITY FROM INDIVIDUAL LIABILITY, above].  Education Code 38.0041 [See DG regarding protection from disciplinary proceedings]

ATTENDANCE COMMITTEE MEMBERSHIP

A member of an attendance committee is not personally liable for any act or omission arising out of duties as a member of an attendance committee.  Education Code 25.092(c)

AMINISTRATION OF MEDICATION

TSBVI, the TSBVI Board of Trustees, and its employees shall be immune from civil liability for damages or injuries resulting from the administration of medication to a student in accordance with Education Code 22.052.  Education Code 22.052(a), (b) [See FFAC]

IMMUNITY FOR MENTAL HEALTH FIRST AID

A person who has completed a mental health first aid training program offered by a local mental health authority and who in good faith attempts to assist an individual experiencing a mental health crisis is not liable in civil damages for an act performed in attempting to assist the individual unless the act is willfully and wantonly negligent.  Health and Safety Code 1001.206

IMMUNITY FOR SHELTER WORKERS

An officer or employee is TSBVI is not civilly liable for an act performed in the discharge of duty if the person is performing an activity related to sheltering or housing individuals in connection with the evacuation of an area stricken or threatened by disaster.

Gov’t Code 418.006, 431.085

 

Adopted:         1/26/18
Amended:
Reviewed: