The attorney and father of a young boy who had his jaw broken in 2016 when being carried to the principal's office got good news Thursday. The Texas 14th Court of Appeals affirmed a lower court's ruling that the Houston Independent School District cannot hide behind sovereign immunity to refuse to release any information about the then 5-year-old's injuries.
The incident occurred on August 25, 2016 at Wilson Montessori Elementary. The school called the boy's father, Houston attorney Al Durrell, who immediately drove his son to the dentist when he discovered the fractured jaw. Several of the boy's teeth had to be removed as well.
The district never denied that its personnel had something to do with the injuries to the boy identified in court documents as C.B.D.In fact, according to court documents filed by the plaintiff, Wilson’s Montessori coordinator “Krystal Perkins stated that her elbow had come into contact with C.B.D.’s face in the hallway.” And school Principal Merrie “Beth” Bonnette also stated that she had contact with C.B.D.
Instead, HISD attorneys argued that by state law, unless the abuse happened on a school bus or other school transportation, under the doctrine of sovereign immunity the school cannot be sued.
Naturally enough, Durrell wanted to know exactly what happened. But after initial assurances that he could view a copy of the recording made by a school camera, Durrell was told he'd have to submit a request for a court-order and by the time he was granted that, the recording had been reportedly accidentally recorded over.
He continued his fight. During which time he discovered that some of the people assisting in carrying his son upside down along the hallway may have not been school district employees.So he petitioned the court to compel HISD to turn over any evidence and to allow him to depose people who know what happened to his son.
In his response to HISD's plea "Durrell pointed out that the Texas Education Code provides that school district employees may be liable for incidents outside the scope of their employment duties as well as for the use of excessive force in the discipline of students or acts negligently resulting in bodily injury to students," the opinion said.
HISD had argued that Durrell had no right to take the matter to court unless he exhausted all his administrative remedies but it never responded in court documents as to what those remedies were, according to the appeals court. The Harris County 125th District Court denied HISD's appeal which then took it to the 14th Court of Appeals.
And Thursday, a three judge panel (the majority affirmed and one judge issued a concurring opinion) saying that Durrell had the right to depose people in this matter. Durrell had wanted to depose an HISD representative who knew something about the incident. "Petitions themselves do not constitute lawsuits that would be barred across-the-board by governmental immunity," the majority opinion said.
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"At this pre-suit stage, Durrell knows only that C.B.D. was injured while at school but does not know how the injury occurred or who may have been involved. Without this information — information HISD possesses and thus far had withheld — Durrell cannot know whether his claims will require exhaustion of remedies or, if exhaustion is required, whether HISD offers adequate procedures to address C.B. D.'s injuries," the opinion states.
Chief Justice Kem Thompson Frost agreed with the two other justices on denying HISD's argument that Durrell had not exhausted all administrative remedies.
He suggested a different approach to the first issue, saying that it had not been determined what was the "proper court" for Durrell to file his petitions in.
Asked how his son is doing these days, Durrell said "much better." And added that his effort to find out what happened to the boy that day will continue.