Opinion by Justice DAVID EVANS.
Appellants Eric and Michelle Will, on behalf of S.N.W., a minor child (the Will family), assert that the trial court erred in granting appellee Cathy Bambenek's motion for summary judgment. We affirm.
On April 8, 2013, S.N.W. was a sophomore who attended Clark High School. Bambenek was S.N.W.'s chemistry teacher. During an experiment, hydrochloric acid spilled on S.N.W.'s hand and caused a burn. Pursuant to section 22.0511 of the Texas Education Code, the Will family brought a negligence claim against Bambenek in her individual capacity. In the petition, the Will family specifically alleged that Bambenek was negligent by failing to: (1) provide the required personal protective equipment, such as protective gloves, when handling hydrochloric acid; (2) follow the guidelines for safe chemical use in the classroom; and (3) follow the required chemical burn protocol. Bambenek moved for summary judgment on the grounds that (1) she was immune from personal liability for negligence based on section 22.0511(a) of the Texas Education Code and (2) the Will family was required to sue the Plano Independent School District. The trial court granted Bambenek's summary judgment motion. The Will family then filed this appeal.
The Will Family raises three sub-issues regarding their challenge to the trial court's granting of summary judgment, complaining (1) there is no immunity for violation of a mandatory rule; (2) the summary judgment affidavits are "self-serving"; and (3) Texas Tort Claims Act does not apply.
1) Standard of review
Where, as here, the summary judgment does not specify or state the grounds relied on, it will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We review the trial court's traditional summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2003). The party moving for summary judgment bears the burden of proof. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). Under Texas Rule of Civil Procedure 166a(c), the moving party must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Further, in reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant's favor. Id.
2) Texas Education Code
This case involves section 22.0511(a) of the Texas Education Code which reads as follows:
See TEX. EDUC. CODE ANN. §22.0511(a) (West 2012).
3) No immunity for violation of a mandatory rule
To come within the shield of section 22.0511 of the Texas Education Code, an employee must satisfy several criteria. Id. For instance, the person claiming immunity must show that she was, at the time of the accident, a professional employee of a school district performing a discretionary task incident to or within the scope of her duties. Id. It must also be shown that the exceptions do not apply. Id. Here, the Will family does not dispute that Bambenek was a professional employee, nor do they argue that the statutory exception applies. Instead, they contend that Bambenek was not performing a discretionary task when the accident occurred. Specifically, the Will family argues that because Bambenek failed to follow a mandatory rule— the non-discretionary school safety policies for laboratory experiments—she is not immune from personal liability under section 22.0511 of the Texas Education Code. We disagree.
Whether an act is ministerial or discretionary depends upon the ability of the actor to exercise discretion when performing it. See Chesshir v. Sharp, 19 S.W.3d 502, 506 (Tex. App.-Amarillo 2000, no pet.). If an edict prescribes the duties to be performed with such precision and certainty so as to leave nothing to the exercise of the actor's judgment, then the act is ministerial. Id. If, however, the actor is entitled to personally deliberate about the manner or means of performance and invoke her own judgment, then it is discretionary. Id.
In her summary judgment motion, Bambenek argued that decisions regarding her classroom safety policies involved her judgment and discretion, not mandatory rules. In support of her motion for summary judgment, Bambenek submitted her affidavit which provided the following assertions:
The evidence submitted by Bambenek indicates that she was in charge of creating and implementing the safety protocols in her classroom. For example, she decided when safety goggles would be worn during experiments and assisted in the preparation of a safety quiz about laboratory safety rules. Thus, Bambenek personally deliberated about the manner or means of the safety protocols and invoked her own judgment. Chesshir, 19 S.W.3d at 506.
In response, the Will family introduced "clear evidence" of non-discretionary school safety policies by referencing a passage from the Texas Safety Standards:
We note, however, that the Texas Safety Standard cannot create a fact issue regarding whether Bambenek failed to follow mandatory safety procedures in her classroom because there is no evidence that these standards were adopted by Clark High School or the Plano Independent School District. As such, we cannot conclude that they were mandatory standards that Bambenek was required to follow.
The Will family also argued that Bambenek violated her own safety policies because school personnel allegedly did not have S.N.W. rinse her burn area for at least fifteen minutes. In support of this assertion, the Will family references the following statement from Bambenek's summary judgment evidence: "[i]n case of contact, immediately flush skin or eyes with plenty of water for at least 15 minutes."
The Will family also references Myers v. Doe, 52 S.W.3d 391 (Tex. App.-Fort Worth 2001, pet. denied) in support of its argument regarding mandatory safety procedures. In Myers, specific policies and procedures were established after a special education student was sexually assaulted by another student at school. Id. at 393-94. The court concluded that the teachers were not entitled to summary judgment for immunity under section 22.051 because fact issues were raised that the teachers failed to follow the policies created specifically for this student. Id. at 396. The court further noted that the policies "defined the duties with such precision as to leave nothing to the exercise of Appellants' judgment or discretion." Id. Here, however, the Will family has not raised a fact issue regarding Bambenek's failure to follow mandatory safety policies and, as such, Myers is distinguishable.
4) "Self-serving" affidavits
The Will family also argues that Bambenek's statements in her affidavit that she was operating within the scope of her employment and exercising discretion "were illegitimate and not entitled to any weight" because of their conclusory nature. We disagree.
A conclusory statement is one that does not provide the underlying facts to support the conclusion. See Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied). As discussed above, Bambenek's affidavit included numerous statements in support of her assertion that she was in charge of creating and implementing her classroom safety protocols. For example, she decided when safety goggles would be worn during experiments and assisted in the preparation of a safety quiz about laboratory safety rules. Accordingly, we hold that these statements provide sufficient underlying facts to support her argument that she was immune from personal liability under section 22.0511 of the Texas Education Code.
We affirm the trial court's decision to grant summary judgment based upon Bambenek's immunity under section 22.0511 of the Texas Education Code, so we need not address the Will family's additional argument that the Texas Tort Claims Act is inapplicable.
We affirm the trial court's judgment.
In accordance with this Court's opinion of this date, the judgment of the trial court is