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Torts No. 03-03-00054-CV, 5/30/2003. Click here for the full text of this decision FACTS: This is an interlocutory appeal from the denial of a motion for summary judgment filed by Elizabeth Kobza based on her claim that she is entitled to official immunity under Texas Education Code �22.051. Kobza was a teacher at Schulenburg High School, teaching word processing, computer classes, business law and accounting. Aaron Kutac was a student in one of Kobza’s classes during the 1999-2000 school year. In February 2000, Aaron was participating in a stock show in Houston where he met a teenage girl who was also a participant. The girl’s father saw Kutac looking at her and asked Aaron to keep his eyes off his daughter. This event was eventually retold to Kobza. When Kobza saw Kutac a few days later, she told him that she heard what happened in Houston. When he asked her how she heard, she jokingly replied that she saw it on the news. For the next couple of weeks, when Kobza saw Kutac she would jokingly call him a “stalker” and he would laugh. Subsequently, Kobza and another teacher, Ms. Beyer, discussed the possibility of creating a gag newspaper article. Beyer created the fake newspaper article, and Kobza told another student they were playing a joke on Kutac and asked the student to take the article to Kutac. The student gave the article to Aaron and said, “Here, you made the paper.” Kutac believed the article was authentic and became upset. He showed the article to his mother, who contacted the police to determine if the contents of the article were true. She then took the matter up with Kobza, who informed her that the article was just a joke. In response, Ms. Kutac filed suit as mother and next friend of Kutac, claiming negligent infliction of emotional distress, intentional infliction of emotional distress, slander, slander per se, negligence, negligence per se and libel. Additionally, Kutac filed a complaint with the State Board of Teacher Certification. In this suit, Kobza filed a motion for summary judgment based on official immunity under �22.051. Her motion was denied. HOLDING: Reversed and rendered. Whether one is acting within the scope of her employment depends on whether the general act from which the injury arose was in furtherance of the employer’s business and the objective for which the employee was employed. Chesshir v. Sharp, 19 S.W.3d 502 (Tex. App. – Amarillo 2000, no pet.) If this test is satisfied, neither the failure of the employer to expressly authorize the act nor the fact that it was performed negligently will strip the act of its protective shield. Kutac argues that Kobza’s act violated three separate departmental policies: 1. the educator shall not intentionally expose the student to disparagement; 2. the educator shall make reasonable effort to protect the student from conditions detrimental to learning, physical health, mental health or safety; and 3. the educator shall not deliberately distort facts. Kutac claims that because Kobza’s act violated three departmental policies, it was ministerial. Kobza claims that the acts complained of in this case were an attempt to further the school’s learning environment by creating rapport with a student by sharing an inside joke with two of the school’s faculty members. Clearly, Kobza used poor judgment and the joke backfired. However, there is not a prescription or definition of exactly what a teacher must do to establish rapport with a student. It is left to the individual teacher’s discretion. The fact that she violated several ethical policies is not dispositive. The policies involved do not contain any language specific to the act complained of here. There are certain rules prohibiting certain types of conduct with students, such as those concerning the administration of corporal punishment or involvement in sexual relations. However, Kobza has not been accused of crossing the bright line of clearly prohibited conduct. She has been accused of creating a fake article and causing a student distress because he did not immediately recognize or understand it was a joke. There is no specific rule that proscribes this conduct. The court holds the act involved in this case is a discretionary act. OPINION: Puryear, J.; Law, C.J., Smith and Puryear, JJ.

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