Lewis LaPaul Fulsom and Pauline Fulsom, as Next of Friend v. Mexia Independent School District

• Court: Court of Appeals of Texas
• Decided: September 22, 2010
• Docket: 10-10-00041-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00041-CV

LEWIS LAPAUL FULSOM AND PAULINE FULSOM, AS NEXT OF FRIEND, Appellants v.

MEXIA INDEPENDENT SCHOOL DISTRICT, Appellee

From the 87th District Court Limestone County, Texas Trial Court No. 29,040-B

MEMORANDUM OPINION

Lewis LaPaul Fulsom and his mother, Pauline Fulsom, filed a lawsuit in May of

2009 against various entities and individuals. After being issued a criminal trespass

warning, which prohibited Fulsom from entering on Mexia Independent School District

property, Fulsom amended his petition and sued MISD for abuse of process. MISD

filed a plea to the jurisdiction contending it was immune from Fulsom’s abuse of

process claim. The plea was granted, and Fulsom appeals. We affirm. Whether a pleader has alleged facts that affirmatively demonstrate a trial court's

subject matter jurisdiction is a question of law reviewed de novo. Tex. Dep't of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

While sovereign immunity refers to the immunity from suit and liability of the

State and the various divisions of state government, governmental immunity protects

political subdivisions of the State, including school districts. See Wichita Falls State Hosp.

v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); Huntsville Indep. Sch. Dist. v. Briggs, 262

S.W.3d 390, 392 (Tex. App.—Waco 2008, pet. denied). For school districts, the Texas

Tort Claims Act’s waiver of governmental immunity is narrow, encompassing only tort

claims involving the use or operation of motor vehicles. TEX. CIV. PRAC. & REM. CODE

ANN. § 101.051 (Vernon 2005); Mission Consolidated, 253 S.W.3d at 656; Briggs, 262

S.W.3d at 392. Further, governmental units are immune from intentional torts. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.057 (Vernon 2005).

Fulsom sued MISD for abuse of process, which is an intentional tort. See

Dillard's, Inc. v. Newman, 299 S.W.3d 144 (Tex. App.—Amarillo 2008, pet. denied); Harris

v. Francis, No. 05-99-00866-CV, 2000 Tex. App. LEXIS 1067 (Tex. App.—Dallas Feb. 16,

2000, no pet.). Because the Texas Tort Claims Act does not waive immunity for

intentional torts, MISD was entitled to immunity. Further, because Fulsom did not

allege that his claim against MISD involved the use or operation of a motor vehicle,

MISD was entitled to immunity. Accordingly, the trial court did not err in granting

MISD’s plea to the jurisdiction.

Fulsom v. Mexia ISD Page 2 The trial court’s judgment is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed September 22, 2010 [CV06]

Fulsom v. Mexia ISD Page 3