El Paso Indep. Sch. Dist. v. Mcintyre

584 S.W.3d 185

EL PASO INDEPENDENT SCHOOL DISTRICT, Appellant,

v.Michael MCINTYRE and Laura McIntyre, Individually and on behalf of Their Minor Children, K.M., L.M., C.M.M, M.M., and L.M., Appellees.

No. 08-11-00329-CV

Court of Appeals of Texas, El Paso.

September 28, 2018

ATTORNEY FOR APPELLANT: Hon. S. Anthony Safi, Mounce, Green, Myers, Safi & Galatzan, P. O. Box 1977, El Paso, TX 79950-1977.

ATTORNEY FOR APPELLEE: Hon. Chad Baruch, Johnston Tobey PC, 3308 Oak Grove Ave., Dallas, TX 75204.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice In 2007, the El Paso Independent School District (EPISD) initiated truancy related criminal charges against Michael and Laura McIntyre, and three of their children, under the then existing mandatory school attendance statute. The charges were eventually dropped by the district attorney. Before us today are remnants of a multi-count civil action that the McIntyres originally filed against EPISD, its then superintendent (Dr. Lorenzo Garcia), an administrator (Mark Mendoza), several of the McIntyre’s relatives, and other EPISD employees. During the decade-long litigation path, which we describe in more detail below, the superintendent, the administrator, the EPISD employees, the relatives, along with several of the causes of action have fallen by the wayside.

The McIntyres have pending below a 42 U.S.C. § 1983 action that claims EPISD violated their constitutional rights in how its employees inquired about their homeschooling curriculum, and later initiated criminal charges against them. That claim is not the subject of this appeal and awaits our remand, so the parties can litigate it to some conclusion. Before us today is only the question of whether the McIntyres also state a claim for declaratory and injunctive relief that overcomes EPISD’s governmental immunity, and the mootness doctrine. We conclude the equitable claims before us should be dismissed.

BACKGROUND

This case returns to us on remand from the Texas Supreme Court. McIntyre v. El Paso Indep. Sch. Dist. , 499 S.W.3d 820 (Tex. 2016). The Supreme Court’s opinion, and our earlier opinion, comprehensively set out the facts of the case. El Paso Indep. Sch. Dist. v. McIntyre , 457 S.W.3d 475, 480-82 (Tex. App.--El Paso 2014), aff'd in part, rev'd in part, 499 S.W.3d 820, 821, 830-31. We repeat only so much of the background as is needed to understand the issues before us.

Since the fall of 2004, Michael and Laura McIntyre have homeschooled their minor children. They initially did so out of an empty space in a motorcycle dealership that Michael and his twin brother, Tracy, ran. Michael, Laura, and Tracy, however, became embroiled in a dispute over the ownership and management of the dealership. Michael and Laura McIntyre allege that other family members, as a pretext to take over the family business, questioned the legitimacy of the McIntyres' homeschooling. In January 2006, which would have been during the time of the dispute, the EPISD received an anonymous complaint that the McIntyres' children were not being educated.¹

Following the complaint, EPISD sent a truant officer to make an initial home visit, and according the McIntyres, confirmed with them that homeschooling was acceptable, and directed the McIntyres where to call to confirm with the EPISD that their children were being appropriately homeschooled. After a series of follow-up calls, they assumed the issue was closed.

In September 2006, the McIntyres' seventeen-year-old daughter, Tori, ran away from home and began living with an aunt and uncle. She was unhappy about not being able to attend school. Her aunt enrolled her in a high school within the EPISD system. Because Tori declined to take any placement tests, and her grade level could not be otherwise confirmed, she was initially put in the 9th grade. In December 2006, Gene and Shirene McIntyre, who are Michael’s parents, and grandparents to the five McIntyre children at issue here, met with Mark Mendoza, EPISD’s designated attendance officer. They expressed concerns over the previous homeschooling of Tori and the education of their other grandchildren.

EPISD then had a representative from one of its middle schools visit the McIntyre home and inquire about the curriculum used to teach the children. The McIntyres answered the door, but Laura said only that she was tired of being harassed and would call her attorney. Another EPISD employee from an elementary school was also asked to go to the McIntyre home and obtain a signed homeschool verification form. The McIntyres allege below that the form goes beyond the requirements of Texas law and asks parents to commit to the Texas Education Association’s approved curriculum. The McIntyres' counsel reviewed the form and advised them not to sign it. The lawyer sent a letter dated January 5, 2007 to EPISD claiming that the children were being homeschooled in a bona fide manner and "in full compliance" with Texas law (that is, utilizing a written curriculum including reading, spelling, grammar, math, and good citizenship). Mendoza, however, did not believe the letter resolved the matter because it did not appear to be based on the lawyer’s personal knowledge.

In January 2007, EPISD delivered several "Notice of Absences and Request for Conference" forms to the McIntyres. The McIntyres did not respond to the requests for information or agree to a meeting. EPISD through its employees then filed criminal truancy complaints in a justice court against Michael and Laura McIntyre, and three of the McIntyre children. The children were charged with failing to attend school, and the McIntyre parents were charged with criminal negligence in failing to require their children to attend school. The charging instruments state, however, that the McIntyres have "not met home school verification requirement."

Mendoza claims he initiated the charges relying on information provided by the children’s grandparents, his confirmation of information regarding Tori’s inability to describe her homeschool education, and the refusal of the McIntyres to provide the EPISD with any written assurance regarding the curriculum they were using. After the complaints were filed, the McIntyres' attorney sent a second letter to EPISD personnel. The letter was essentially identical to the first letter, but it also included a threat to file a lawsuit.

The McIntyres entered pleas of not guilty to the truancy charges and requested a separate jury trial for each. They allege that they made several phone calls to resolve the matter with EPISD, but the employees they spoke with were either unfamiliar with the charges or could not identify what paperwork was required to meet the verification requirement. They also allege that they spoke with Mark Mendoza who demanded copies of curriculum and progress reports, and told them that he knew they were not breaking the law.² Conversely, the State’s prosecutor, Matt Moore, testified that he would have dismissed the charges if the McIntyres would have signed a letter he prepared that attested that they were educating their children in compliance with the Texas Supreme Court’s decision in Texas Educ. Agency v. Leeper , 893 S.W.2d 432, 443 (Tex. 1994). He testified that they refused to do so.

In October 2007, prosecutor Moore contacted Tori and asked if she would vouch for the fact that her parents were using a curriculum and providing a bona fide education, but Tori declined to get involved. Moore decided to dismiss the truancy complaints, and filed a motion to dismiss stating that the State’s essential witness (Lori) refused to testify. The justice court formally dismissed all the charges on December 3, 2007.

The Lawsuit Below

During the pendency of the criminal charges, Michael and Laura McIntyre, along with five of their children ranging in age from seven to fifteen, filed this civil lawsuit against EPISD, Dr. Lorenzo Garcia (in his official capacity), Mark Mendoza, three other named EPISD employees, and several of their own family members (Gene, Shirene, and Tracy McIntyre). By the time of their Third Amended Petition--the last live pleading--the three-other named EPISD employees had been dropped from the suit.

The Third Amended Petition asserts six counts, and one unnumbered claim for injunctive relief. The various claims include:

• Count 1, Declaratory Relief. The McIntyres seek declaratory relief in part under TEX.CIV.PRAC. & REM.CODE ANN. § 110.005 (West 2011). The count seeks various declarations, including that the McIntyres were innocent of all the charges made by EPISD, and that Mendoza was acting outside the scope of his authority by filing a criminal charge for a "non-existent crime."

• Count 2, Equal Protection. The McIntyres alleged that they have been treated differently from other families that homeschool, or that send their children to private schools. They allege that EPISD did so by exceeding its legal right to inquire about the curriculum used by the McIntyres and filing charges for a "fabricated crime."

• Count 3, Due Process under the Texas and Federal Constitutions. The McIntyres allege that EPISD’s custom and policy is to use the threats of, or actual prosecution, to compel compliance with EPISD demands. In doing so, EPISD reverses the burden of proof on homeschooling families.

• Count 4, Privacy. Here, the McIntyres allege that through "defamatory accusations" of "non-existent crimes" their privacy rights under the Texas Constitution were violated.

• Count 5, Malicious Prosecution. Under this count, the McIntyres sought money damages against the family member defendants under state law and pleaded a claim for malicious prosecution under 42 U.S.C. § 1983 against EPISD and its employee defendants.

• Count 6, Religious Liberty. The McIntyres allege a violation of the Texas Religious Freedom Restoration Act (TRFRA), claiming that EPISD burdened their free exercise of religion.

• Equitable Relief. The McIntyres, pursuant to the Texas

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