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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION ROSENDO BENAVIDES, YVONNE BENAVIDES, KATIE CEDILLO, JUAN CERDA, RODOLFO CERDA, JR., SERGIO FLORES, ROSALVA FUENTES, LEONEL GARZA, JR. MARIA LANDEZ, ARTURO RODRIGUEZ MARTHA ROMERO, HERMELINDA SALINAS, JUAN L. SALINAS, OSCAR SALINAS, HECTOR SOSA AND ANTONIO URESTI Plaintiffs vs. CIVIL ACTION NO. 7:11-cv-260 LA JOYA INDEPENDENT SCHOOL DISTRICT, ISMAEL KINO FLORES, INDIVIDUALLY, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT Defendants

DEFENDANTS, LA JOYA INDEPENDENT SCHOOL DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICTS 12(b)(6) MOTION TO DISMISS AND TO STAY DISCOVERY

TO THE HONORABLE JUDGE OF SAID COURT: NOW COME, Defendants, LA JOYA INDEPENDENT SCHOOL DISTRICT, (hereinafter, the Defendant DISTRICT), ADRIANA VILLARREAL,
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INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, and IRENE M. GARICA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT, (hereinafter sometimes referred to as the the Individual Defendants) and file this their 12(b)(6) Motion to Dismiss and To Stay Discovery and would show the Court the following: I. PROCEDURAL HISTORY This action was commenced on August 16, 2011, in the 370th Judicial DISTRICT Court of Hidalgo County, Texas as Cause No. C-2243-11-G. Defendants were served with Plaintiffs Original Petition, Application for Temporary Restraining Order and Request for Temporary and Permanent Injunctions on August 16, 2011. Plaintiffs asserted claims for violations of their constitutional rights, pursuant to the First and Fourteenth Amendments to the Constitution of the United States and the provisions of the Constitution and laws of the State of Texas in Plaintiffs Original Petition, Application for Temporary Restraining Order and Request for Temporary and Permanent Injunctions. Additionally, Plaintiffs asserted claims for intentional infliction of emotional distress and civil conspiracy. On August 26, 2011 counsel for Plaintiffs filed the Original Petition in Intervention of Jessica Ochoa, Maricela Acevedo, Aurora Garza and Veronica L. Garza, in the State action which identified Jessica Ochoa, Maricela Acevedo, Aurora Garza and Veronica L. Garza as additional interested parties. These additional Plaintiffs asserted the identical claims asserted in Plaintiffs Original

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Petition. Defendants were served with the Original Petition in Intervention on August 26, 2011. On that same date the Defendant DISTRICT electronically filed with the Hidalgo County DISTRICT Clerk its Notice of Removal to Plaintiffs in the State action in Cause No. C-2243-11-G. Thereafter, the Defendant

DISTRICT also electronically filed in the State action its Notice to DISTRICT Court Clerk of Filing of Notice of Removal. Additionally, the Notice of Removal, Certificate of Filing, Civil Cover Sheet, and Joinder in Removal were filed in the instant cause on August 26, 2011 and served on all counsel of record. On September 6, 2011 the Defendant DISTRICTs Motion for Leave to File Supplemental Notice of Removal and Supplemental Notice of Removal were filed with the Court requesting that the Court take notice of Jessica Ochoa, Maricela Acevedo, Aurora Garza and Veronica L. Garza as additional interested parties as identified by counsel for Plaintiffs in the Original Petition in Intervention. On September 9, 2011 the Defendant DISTRICTs Motion for Leave to File Unopposed Supplemental Notice of Removal and the Unopposed Supplemental Notice of Removal were filed with the Court requesting that the Court take notice of Jessica Ochoa, Maricela Acevedo, Aurora Garza and Veronica L. Garza as additional interested parties as identified by counsel for Plaintiffs in the Original Petition in Intervention. On September 12, 2011 the Court entered the Order Granting Unopposed Motion for Leave to File Supplemental Notice of Removal.

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II. MOTION TO DISMISS STANDARD This Court is well-versed in the standards that must be adhered to in order to grant such a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. III. ARGUMENTS AND AUTHORITY 1. PLAINTIFFS CANNOT MAINTAIN THEIR FEDERAL CONSTITUTIONAL CLAIMS UNDER SECTION 1983 AGAINST THE DEFENDANT DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, AND IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT. To state a claim under Section 1983, Aa plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.@ Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). Under Section 1983, a local governmental entity, such as a school DISTRICT, may be held liable only for acts for which it is actually responsible. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). Therefore, to sustain liability against a school DISTRICT under Section 1983, Plaintiffs must point to more than the actions of an employee; they must identify a policy maker1 with final policy making authority and a policy that is

Whether a particular official has "final policy-making authority" is a question of state law. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). In Texas and the Fifth Circuit, it is clear that the final policy-making authority in an independent school DISTRICT rests with the DISTRICT's board of trustees. Jett v. Dallas Indep. School Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).

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the Amoving force@ behind the alleged constitutional violation. Home for Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996).

Meadowbriar

In this case, Plaintiffs have failed to even allege the existence of a policy, practice or custom attributable to the Board of Trustees that led to the deprivation of Plaintiffs rights under the federal constitution. Stated

differently, Plaintiffs cursory allegations against the DISTRICT clearly fall short of the type of conduct required to support a Section 1983 claim against the DISTRICT and, consequently, their claims should be dismissed, as a matter of law. 2. PLAINTIFFS CANNOT MAINTAIN THEIR SECTION 1983 CLAIMS AGAINST DEFENDANT IRENE M. GARCIA, IN HER OFFICIAL OR REPRESENTATIVE CAPACITY AS A MATTER OF LAW. Notwithstanding the foregoing, Defendant, IRENE M. GARCIA maintains that the Court should nonetheless dismiss Plaintiffs official or representative capacity claims because these claims are not only redundant, but these claims have no independent legal significance. See Bluitt v. Houston Indep. Sch. Dist., 236 F.Supp.2d 703, 727 (S.D.Tex. 2002). It is well-established that a Section 1983 suit against a state official in his official capacity is a suit against the official=s office, and, therefore, a suit against the State itself. U.S. ex rel. Adrian v. Regents of Univ. Of Cal., 363 F.3d 398, 402 (5th Cir. 2004). In Regents of Univ. of Cal., the Fifth Circuit cited to the Supreme Court=s decision in Kentucky v. Graham, 473 U.S. 159 (1985), in which the Supreme Court explained that [o]fficial capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent.

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Graham, 473 U.S. at 165 (quoting Monell v. N.Y. Dep=t of Soc. Services, 436 U.S. 658, 690 n.55 (1978)). As a consequence, A[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.@ Id. at 166 (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). The Supreme Court

further noted that A[t]here is no longer a need to bring official-capacity actions against local government officials, for under Monell, local government units can be sued directly for damages and injunctive or declaratory relief.@ Id. at 167 n.14. Since Plaintiffs assert the same federal constitutional claims against the Defendant DISTRICT that they assert against Defendant, IRENE M. GARICA in HER OFFICIAL CAPACITY, the Court should dismiss these claims as duplicative and of no independent legal significance. See Wakat v. Montgomery County, 471 F.Supp.2d 759, 768 (S.D.Tex. 2007). 3. THE INDIVIDUAL DEFENDANTS, IN THEIR INDIVIDUAL CAPACITIES, AS TO THE SECTION 1983 CLAIMS, ENJOY THE PROTECTION OF QUALIFIED IMMUNITY AND ARE SHIELDED FROM LIABILITY AND FROM DEFENDING AGAINST A LAWSUIT, AND ARE THEREFORE ENTITLED TO STAY DISCOVERY. Notwithstanding the foregoing, the Individual Defendants assert the affirmative defense of qualified immunity. Qualified Immunity shields a

government official from civil liability for damages based on the performance of discretionary functions if the official=s acts were objectively reasonable in light of clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity standard gives ample room for mistaken judgments by protecting A>all but the plainly incompetent or those who knowingly violate the

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law.=@ Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In suits brought under federal law, government

employees are presumptively entitled to the defense of qualified immunity and, once the defense is asserted, the burden shifts to the plaintiff to show that immunity does not bar recovery. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992); Bennett v. City of Grand Prairie, 883 F.2d 400, 408 (5th Cir. 1989). One of the principal purposes of the qualified immunity doctrine is to shield officers not only from liability, but also from defending against a lawsuit. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954 F.2d 1054, 1057 (5th Cir. 1992). The Individual Defendants should not be

burdened with the cost of conducting extensive discovery in this matter until the issue of qualified immunity is determined by the Court. Therefore, the

Individual Defendants request that the Court stay discovery and the attendant legal expense and burden of defending this lawsuit until a determination is made by this Court on the issue of qualified immunity. In assessing a claim of qualified immunity, a court engages in a two-step analysis. First, the court determines whether a plaintiff has alleged the

violation of a clearly established federal constitutional or federal statutory right. Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993) (revd on other grounds by 507 U.S. 163 (1993)). If the plaintiff has first alleged a

constitutional violation, the court then decides if the defendant=s conduct was objectively reasonable, because A>[e]ven if an official=s conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was

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objectively reasonable.=@

Id. at 105, (citing Spann v. Rainey, 987 F.2d 1110,

1114 (5th Cir. 1993)) (quoting Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992)). Furthermore, in order to state a cause of action under Section 1983, a plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the

constitutional violation alleged. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). That is, to hold individual defendants liable

under Section 1983, a plaintiff must adduce facts demonstrating the defendants= specific participation in the alleged wrong. See Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992). Because Plaintiffs have failed to set out specific facts, with respect to each Individual Defendant, that, if proven, would demonstrate a federal constitutional deprivation, these Individual Defendants are entitled to and enjoy the protection of qualified immunity. Alternatively, should Plaintiffs wish to pursue claims against the Individual Defendants in their individual capacities, they should be required to file a Rule 7(a) reply with greater detail to satisfy their burden to rebut the presumption of qualified immunity. 4. PLAINTIFFS STATE CONSTITUTIONAL CLAIMS FOR ACTUAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEYS FEES AGAINST THE DEFENDANTS ARE NOT RECOGNIZED UNDER TEXAS LAW. Notwithstanding the foregoing, in Plaintiffs Original Petition, they seek actual damages and mental anguish, exemplary damages2 and attorneys fees3

The Texas Torts Claims Act also makes it clear that exemplary damages cannot be recovered in an action against a governmental unit under the Act. TEX. CIV. PRAC. & REM. CODE 101.024.

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against the DISTRICT and the Individual Defendants under the Texas Constitution. Plaintiffs state law constitutional claims against the DISTRICT and the Individual Defendants should be dismissed, as a matter of law, as it is clear that sovereign immunity bars a suit for money damages for general constitutional torts under the Texas Constitution against governmental entities. See Texas A&M Univ. Syst. v. Luxembourg, 93 S.W.3d at 425. Texas Courts have also consistently held that there is no implied private right of action for damages4 for general violations of the Texas Constitution and no state statute comparable to Section 1983 to allow a claim to be raised against the DISTRICT or the Individual Defendants5. City of Elsa, 226 S.W.3d at 392; see City of Beaumont v., Bouillion, 896 S.W.2d 143, 147 (Tex.1995); Jackson v. Houston Indep. Sch. Dist., 994 S. W.2d 396, 400-01 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (noting that Bouillion applies to other rights under the Texas Constitution). Consequently, Plaintiffs claims for monetary damages,

exemplary damages and attorneys fees under the Texas Constitution should be denied and dismissed as a matter of law.
Under Texas law, it is also well-established that the attorneys fees may not be recovered from an opposing party unless such recovery is provided for by statute or contract. Texas. A&M Univ. Syst. v. Luxemburg, 93 S.W.3d 410 (Tex. App.Houston [14th Dist.] 2002, pet. denied) (citing Traveler's Indem. Co. of Com. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1993)). In Luxemburg, the court concluded there was no basis for awarding attorneys fees when Plaintiff brought suit alleging deprivation of constitutional rights under the freedom of assembly and free speech clause of the Texas Constitution, even though a final judgment had awarded Luxemburg back pay, attorneys fees or costs. The Appellate court cited Boullion in reversing the monetary judgment for Plaintiff in its entirety including the award for back pay and attendant benefits and attorneys fees. See also City of San Benito v. Ebarb, 885 S.W.3d 711, 723 (Tex. App. - Corpus Christi 2002). Although equitable remedies for violations of the Texas Constitution are not prohibited, a party seeking monetary damages requests a legal remedy, not an equitable one. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007); Patel v. City of Everman, 179 S.W.3d 1, 14 (Tex. App.Tyler 2004, no pet.). Claims seeking equitable relief for Texas constitutional violations may only be maintained against governmental entities, so Plaintiffs claims against the Defendants in their individual capacities should be dismissed as a matter of law. City of Elsa, 226 S.W.3d at 392. Plaintiffs specific constitutional claims against the Individual Defendants are further barred by section 101.106(e) of the Texas Torts Claims Act. TEX. CIV. PRAC. REM. CODE. 101.106(e)
5 3

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5.

PLAINTIFFS= STATE-LAW TORT CLAIMS AGAINST THE DEFENDANT DISTRICT AND THE INDIVIDUAL DEFENDANTS, IN THEIR OFFICIAL OR REPRESENTATIVE CAPACITIES ARE BARRED BY SOVEREIGN OR GOVERNMENTAL IMMUNITY. Notwithstanding the foregoing, sovereign immunity is a common-law

doctrine long-recognized in Texas; under its principles, governmental entities "... as a rule are not liable for injuries resulting from the negligence of their officers or agents, and no recovery can be had in damages unless liability be created by statute." Harris County v. Gerhart, 283 S.W. 139, 140 (Tex. 1926); State v. Terrell, 588 S.W.2d 784, 785 (Tex. 1979). As a governmental agency, the La Joya Independent School DISTRICT "... is shielded by governmental immunity from liability unless that immunity is waived by the legislature. [Citation omitted]. Any legislative waiver of governmental immunity must be clear and unambiguous. [Citation omitted]." Toungate v. Bastrop Indep. Sch. Dist., 842 S.W.2d 823, 828 (Tex. App.CAustin 1992, no writ); see also Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex. 1989). The Texas Tort Claims Act is a statutory waiver of sovereign immunity applicable to tort-based causes of action. TEX. CIV. PRAC. & REM. CODE ANN. ''101.001 et seq (Vernon 2005). However, it is a limited waiver. Ramos v. City of San Antonio, 974 S.W.2d 112, 116 (Tex. App. B San Antonio 1998, no writ). Under the

provisions of sections 101.021 and 101.051 of that Act, a school DISTRICT may be liable only on causes of action arising from the use or operation of motor vehicles. See Pierson v. Houston Indep. Sch. Dist., 698 S.W.2d 377 (Tex. App. C Houston [14th DISTRICT] 1985, writ refused n.r.e.). Furthermore, to the extent Plaintiffs raise their state-law tort claims against the Individual Defendants, in their official or representative capacities, an Aofficial-capacity suit@ is a suit against the official=s office and not against the official. Whitehead v. University of Texas Health Science Ctr., 854 S.W.2d 175, 179 (Tex. App.CSan Antonio, 1993, no writ). An official-capacity suit is, therefore, no different than a suit against the governmental entity itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also City of Dallas v. England, 846 S.W.2d 957, 959 (Tex. App.CAustin, 1993, writ dismissed w.o.j.).
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As noted above, a school DISTRICT=s sovereign immunity is only waived by the Texas Torts Claims Act in cases specifically involving Athe use or operation of a motor vehicle.@ See TEX. CIV. PRAC. & REM. CODE ANN. '' 101.021(1); 101.051; 101.057; LeLeaux v. Hamshire - Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992); Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex. 1978). It is

uncontroverted that Plaintiffs= state-law tort claims do not arise from the use or operation of a motor vehicle. Consequently, the immunity available to the

Individual Defendants, in their official or representative capacities, is the same as that available to the governmental entity, the La Joya Independent School DISTRICT. Esparza v. Diaz, 802 S.W.2d 772, 778 (Tex. App.CHouston [14th

Dist.] 1990, no writ). Based upon the above authorities, Defendants request that the Court deny Plaintiffs state-tort law claims for want of jurisdiction under the doctrine of sovereign immunity or governmental immunity. 6. PLAINTIFFS= STATE-LAW TORT CLAIMS AGAINST INDIVIDUAL DEFENDANTS ADRIANA VILLARREAL AND RICARDO VILLARREAL IN THEIR INDIVIDUAL CAPACITIES ARE BARRED UNDER SECTION 101.106(e) OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE. Notwithstanding the foregoing and to the extent Plaintiffs are raising their state-law tort claims against Defendant ADRIANA VILLARREAL, and Defendant, RICARDO VILLARREAL (the paid employees of the DISTRICT), in their individual capacity, the Texas Torts Claims Act extends the DISTRICT=s sovereign immunity to governmental employees. Urban v. Canada, 963 S.W.2d 805, 807-08 (Tex. App.CSan Antonio 1998, no pet.). Section 101.106(e) provides: A[i]f a suit is filed under this chapter against both a governmental unit and any of its employees, the employee shall immediately be dismissed on the filing of a motion by the governmental unit.@ TEX. CIV. PRAC. & REM. CODE ' 101.106(e). Accordingly and by operation of Section 101.106(e) of the Texas Torts Claims Act, the La Joya Independent School DISTRICT moves that the Court dismiss Plaintiffs= state-law tort claims against Defendant, ADRIANA VILLARREAL, and Defendant RICARDO VILLARREAL, in their individual capacities, as a matter of law.

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7.

The INDIVIDUAL DEFENDANTS ARE ENTITLED TO STATUTORY IMMUNITY FROM ALL STATE CLAIMS PURSUANT TO 22.051(a)(1), 22.051(a)(5), 22.051(a)(6), 22.051(b), 22.0511(a) AND 22.0511(c) OF THE TEXAS EDUCATION CODE, INCORPORATING THE PAUL D. COVERDELL TEACHER PROTECTION ACT OF 2001 ( 20 U.S.C. 6731 et seq.), AS AMENDED. Notwithstanding the foregoing, Defendants ADRIANA VILLARREAL,

RICARDO VILLARREAL, and IRENE M. GARCIA are professional employees of a school DISTRICT and in their individual capacities are immune from liability from all state claims pursuant to TEXAS EDUCATION Code 22.051 and 22.0511. TEXAS EDUCATION CODE, Chapter 22, Subchapter B, entitled Civil Immunity sets out the definition for professional employee of a school DISTRICT" and includes within this definition a superintendent, principal, teacher, including a substitute teacher, supervisor, social worker, counselor, nurse, teacher's aide employed by a school DISTRICT, as well as any other person employed by a school DISTRICT whose employment requires certification and the exercise of discretion. TEXAS EDUCATION CODE 22.051(a)(1) and 22.051(a)(6).

Furthermore, the term professional employee of the school DISTRICT also includes a member of the board of trustees of an independent school district. TEXAS EDUCATION CODE 22.051(a)(5). It is important to note that the immunity to which Defendants, ADRIANA VILLARREAL, RICARDO VILLARREAL and IRENE M. GARCIA are entitled to under this provision, is in addition to any other immunity that they are entitled to under Federal or Texas Law. TEXAS EDUCATION CODE, 22.051(b) provides as follows:

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(b)

The statutory immunity provided by this subchapter is in addition to and does not preempt the common law doctrine of official and governmental immunity.

TEXAS EDUCATION CODE 22.0511 provides statutory immunity from liability to Defendants ADRIANA VILLARREAL, Individually, RICARDO

VILLARREAL, Individually, and IRENE M. GARICA, Individually and In Her Capacity as Board President. Section 22.0511(a) provides as follows: (a) a professional employee of a school DISTRICT is not personally liable for any act that is incident to or within the scope of 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.

The immunity provided by this statute is in addition to the immunity afforded to the Individual Defendants under state law, and under the Paul D. Coverdell Teacher Protection Act of 2001, 20. U.S.C. Section 6731, et seq., as amended. TEXAS EDUCATION CODE 22.0511(c). Section 22.0511(c) states

further that [n]othing in this subsection shall be construed to limit or abridge any immunity or protection afforded an individual under state law. It is uncontroverted that Individual Defendants, ADRIANA VILLARREAL and RICARDO VILLARREAL are certified administrators (supervisors) of the Defendant DISTRICT. Defendant, ADRIANA VILLARREAL is the Assistant RICARDO

Superintendent of Human Resources and Student Services. VILLARREAL is the Administrator for Human Resources.

Furthermore, it is

also uncontroverted and judicially admitted that Defendant, IRENE M. GARCIA is a school board member. Therefore, each of these Defendants in their

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individual capacity are entitled to immunity from all State claims as provided for in TEXAS EDUCATION CODE 22.051 and 22.0511. IV. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, for the reasons shown above, the DISTRICT and Individual Defendants respectfully move the Court: a. Grant their 12(b)(6) Motion to Dismiss all claims against Defendant DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO

VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY and in HER OFFICIAL CAPACITY; b. Dismiss the Section 1983 claims against Defendant, IRENE M. GARCIA in HER OFFICIAL CAPACITY; c. Dismiss the Section 1983 claims against Defendants, ADRIANA

VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY based on qualified immunity; d. Dismiss Plaintiffs Texas State Constitutional claims, and claims for exemplary damages and attorneys fees against Defendant, DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL,

INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY and in HER OFFICIAL CAPACITY as a matter of law; e. Dismiss Plaintiffs State Law tort claims against Defendant DISTRICT and IRENE M. GARCIA, in HER OFFICIAL CAPACITY on the basis of Sovereign or Governmental Immunity;

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f. Dismiss Plaintiffs State Law tort claims against ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY on Motion by Defendant DISTRICT as barred pursuant to 101.0106(e) of
CIVIL PRACTICE AND REMEDIES CODE; THE TEXAS

g. Dismiss all State Law tort claims against ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY AND IRENE M. GARCIA, INDIVIDUALLY pursuant to the statutory immunity provided in 22.051 and 22.0511 of the TEXAS EDUCATION CODE; h. Order all discovery stayed Respectfully submitted, WALSH, ANDERSON, BROWN, GALLEGOS & GREEN, P.C. 6521 North 10th Street, Ste. C McAllen, Texas 78504 Telephone: (956) 971-9317 Facsimile: (956) 971-9318 By: /s/ Miguel A. Saldaa Miguel A. Saldaa ATTORNEY IN CHARGE State Bar No. 17529450 Federal Bar No. 10954

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OF COUNSEL: Maxine Longoria-Nash State Bar No. 00787919 Federal Bar No. 16846 WALSH, ANDERSON, BROWN, GALLEGOS & GREEN, P.C. 6521 North 10th Street, Ste. C McAllen, Texas 78504 Telephone: (956) 971-9317 Facsimile: (956) 971-9318 COUNSEL FOR DEFENDANTS, LA JOYA INDEPENDENT SCHOOL DISTRICT, ADRIANNA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY and IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT

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CERTIFICATE OF SERVICE I hereby certify that on the 16th day of September, 2011, a true and correct copy of the above and foregoing Defendants, La Joya Independent School DISTRICT, Adriana Villarreal, Individually, Ricardo Villarreal, Individually, and IRENE M. Garcia, Individually and In Her Capacity as Board President for the La Joya Independent School DISTRICTs 12(b)(6) Motion to Dismiss and to Stay Discovery was electronically filed with the Clerk of the Court using the CM/ECF electronic filing system which will send notification of such filing to the following: COUNSEL FOR PLAINTIFFS: Ramon Garcia / Emerson E. Arellano LAW OFFICES OF RAMON GARCIA, P.C. 222 West University Dr. Edinburg, Texas 78539 Telephone: (956) 383-7441 Facsimile: (956) 381-0825 The undersigned further certifies that a true and correct copy of the foregoing document has been provided to the following counsel of record via facsimile: COUNSEL FOR DEFENDANT, ISMAEL KINO FLORES: Ismael Kino Flores, Jr. LAW OFFICE OF ISMAEL KINO FLORES, JR. 1118 W. Palma Vista Drive Palmview, Texas 78572 Telephone: (956) 781-5444 Facsimile: (956) 787-9175

/s/ Miguel A. Saldaa MIGUEL A. SALDAA

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION ROSENDO BENAVIDES, YVONNE BENAVIDES, KATIE CEDILLO, JUAN CERDA, RODOLFO CERDA, JR., SERGIO FLORES, ROSALVA FUENTES, LEONEL GARZA, JR. MARIA LANDEZ, ARTURO RODRIGUEZ MARTHA ROMERO, HERMELINDA SALINAS, JUAN L. SALINAS, OSCAR SALINAS, HECTOR SOSA AND ANTONIO URESTI Plaintiffs vs. CIVIL ACTION NO. 7:11-cv-260 LA JOYA INDEPENDENT SCHOOL DISTRICT, ISMAEL KINO FLORES, INDIVIDUALLY, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT Defendants

ORDER

Be it remembered that on this day came to be considered the 12(b)(6) Motion to Dismiss and to Stay Discovery filed by Defendants, LA JOYA INDEPENDENT SCHOOL DISTRICT, ADRIANA VILLARREAL, INDIVIDUALLY, RICARDO VILLARREAL, INDIVIDUALLY, and IRENE M. GARCIA, INDIVIDUALLY AND IN HER CAPACITY AS BOARD PRESIDENT FOR THE LA JOYA INDEPENDENT SCHOOL DISTRICT. After considering

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said pleadings and other documents on file in this cause, and the arguments of the parties, the Court makes the following findings: (1) Plaintiffs cannot maintain their federal constitutional claims under section 1983 against

the Defendants; (2) Plaintiffs cannot maintain their Section 1983 claims against the Individual Defendants in

their Official or Representative Capacities as a matter of law; (3) Plaintiffs cannot maintain their Section 1983 claims against the Individual Defendants

under the doctrine of Qualified Immunity; (4) Plaintiffs state constitutional claim for actual damages, exemplary damages and

attorneys fees against the Defendants are not recognized under Texas law, and therefore should be dismissed, as a matter of law. (5) Plaintiffs= state-law tort claims against the District and the Individual Defendants, in their

Official or Representative capacities, are barred by Sovereign or governmental immunity and therefore should be dismissed. (6) Plaintiffs= state-law tort claims against Individual Defendants, ADRIANA

VILLARREAL and RICARDO VILLARREAL in their individual capacities are barred under Section 101.106(e) of the Texas Civil Practice and Remedies Code. (7) Plaintffs state law tort claims against Individual Defendants are barred by 22.051 and

22.0511 of the Texas Education Code. The Court is, therefore, of the opinion that the Defendants Motion to Dismiss and to Stay Discovery is well taken and should be granted.

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Case 7:11-cv-00260 Document 16-1

Filed in TXSD on 09/16/11 Page 3 of 3

It is therefore ORDERED, ADJUDGED, AND DECREED that Defendants 12(b)(6) Motion to Dismiss and to Stay Discovery be, and is hereby, GRANTED. SIGNED on this _________ day of ______________, 2011.

_________________________________ UNITED STATED DISTRICT JUDGE

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