Barking up The Wrong Tree

From: Scott Worst [mailto:[email protected]]
Sent: Thursday, January 27, 2023 3:05 PM
Subject: Re: Should Judges Pay For Their Bad Decisions? Pt. I

With all due respect to J4J (including its chosen writers/contributors re its "News Journal"), I have grown tired of the following drumbeat --seemingly incessant in its pounding, to wit: "Judges have absolute judicial immunity (i.e., cannot be held responsible) for their deeds." Such claim by J4J is not only erroneous & misleading, it is tantamount to 'defeatism' --an unusual J4J stance. Therefore, I have included herewith (scroll down past the below email from J4J) an in-depth, topical lecture by Allan Hawkins (Esq.), for those who may wish enlightenment. Respectfully and sincerely, Scott [email protected]

In many instances, a criminal prosecution can be brought against the wrongdoer if he intentionally or dishonestly hurt you. That is true of almost all wrongdoers. But there is an exception. In fact, a glaring and very important exception: judges. Unlike every other member of our society, a judge can intentionally and wrongfully hurt or damage a person, and not be liable for a cent in damages. Under current law, there is nothing you can do. The judge is protected against any liability for damages, or any legal liability at all, under the rule of "judicial immunity." This is a rule the judges made up themselves. It was never passed by Congress or the Minnesota legislature, or any state legislature. Thus, a judge can take your children away from you, put you in jail, lie about you, give your money away, take all your property intentionally and for the purpose of destroying you, and get away with it as long as it is part of a legitimate legal proceeding before the judge.

This rule is stated most clearly in a federal case known as Ashelman v. Pope,1 where the court wrote: "Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities. . . . Judicial immunity applies 'however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. . . . Such immunity applies even if it leaves 'the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.'" Even "a conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges and prosecutors." (emphasis by Jake)

In one famous case, Stump v. Sparkman,2 a judge wrongfully ordered that a fifteen year old girl be secretly sterilized (she was told her appendix was being removed) and the U. S. Supreme Court decided he could not be held liable. According to the Ashelman case the reason judges must have total absolute immunity regardless of what they do is: "to ensure independent and disinterested judicial ... decisionmaking."

In reality, judges have made themselves dictators who can do what they please without fear of paying for the damage or hurt they cause. Is this good for society? Should any person have such power? Do some judges abuse the power we have given them? Is it really necessary for judges to have absolute complete immunity even if they intentionally and wrongfully damage or hurt people in order to get "independent and disinterested" decisions? ....

When it applies, to the extent that it applies, judicial immunity is absolute. Whether it applies is also absolute. When judicial immunity does not apply, it has absolutely no effect.

Immunity that is not absolute is not judicial immunity. Judicial immunity is not qualified. Qualified immunity is not judicial immunity.

In this course, "judicial immunity" and "absolute judicial immunity" are used interchangeably. Judicial immunity is absolute. Absolute judicial immunity is just judicial immunity. A rose by any name is still a rose, and judicial immunity by any name is still judicial immunity.

Beware. There are other immunities that are not judicial immunity. Unfortunately, Texas courts use terms that include the words "judicial immunity" for concepts which are not judicial immunity. Immunity that is not judicial immunity is not within the scope of this course. Beware of terms like "derived judicial immunity" and "quasi judicial immunity." Those terms are confusing. Even worse, some courts may refer to actual judicial immunity by such terms. Both the language and thinking is often muddled in situations involving people who are not "judges" but have (1) judicial functions and therefore judicial immunity, or (2) roles related to courts. Sometimes courts use confusing language. Sometimes courts are confused about the substantive judicial immunity concepts.

Judicial immunity is just one kind of immunity. A mathematician would call judicial immunity a subset of immunity. Immunity is often discussed by Texas courts as if all immunity derives from judicial immunity. That is erroneous. Immunity isn't always related to judicial immunity. Some immunity has nothing to do with a judicial function. Use of the term "judicial" in relation to any "immunity" which is not judicial immunity creates confusion and should be avoided.

If immunity is not absolute immunity, it is not judicial immunity and should not have "judicial" in its name. Absolute immunity that is unrelated to judicial acts should not be called judicial. Better terminology would improve the ability of courts, lawyers and laymen to understand and correctly apply the law. Until clear and correct language is used, there will be confusion instead of clarity. In this course we enjoy the luxury of analyzing only true judicial immunity. However, when you research judicial immunity, you will find the confusing language in cases about immunity which is not judicial immunity and does not have the all of the attributes of judicial immunity.

Is judicial immunity simple? Let's put some of the easy concepts in one sentence and see. When actions are taken in a judicial capacity by a judge[1] who is lawfully presiding in a specific court[2] with jurisdiction over a specific pending case[3] in which the court[4] has subject matter jurisdiction and the legal authority to take the action in question, the jurisdiction and plenary power of the court[5] has been activated, and the court[6] has personal jurisdiction or in rem jurisdiction,[7] the judge[8] is protected from civil suit for monetary damage and monetary judgment for those actions by the affirmative defense of judicial immunity. Yes, there are many factors to consider.

Note that judicial immunity is immunity from monetary damages. It is not immunity from injunction, or from special proceedings such as mandamus and prohibition. It is not necessarily immunity from a requirement to pay the prevailing party's legal fees, although immunity might be given by statute or other law.

Judicial immunity is immunity from a personal suit for monetary damages. It is not immunity from a suit against a governmental entity in which the judge is named, but the entity is the real party in interest.

Texas Judicial immunity does not support dismissal, but can support summary judgment. In Texas, judicial immunity is an affirmative defense that must be plead and proven by the defendant. Facts related to whether the immunity defense is valid are discoverable and must be proven. In contrast, in Federal court, it can be said that judicial immunity is immunity from the suit itself as well as the judgment.

In cases in which it is a suitable approach, a court might resolve the immunity claim, at least tentatively, before the Plaintiff's case proceeds. However, the facts related to immunity and the facts related to other issues may overlap in a way that makes that approach impractical. Regardless of the procedure, discovery and presentation of facts related to the immunity issue is required before the immunity defense can be upheld. Therefore, it can be said that, there is no Texas immunity from the part of the suit that determines whether there is immunity.

Judicial immunity does not depend on the judicial status of the actor. Whether a person is a judge, or is not a judge is not the issue.

Sometimes the acts of a person who is not a judge are protected by judicial immunity.[9]

Sometimes the acts of a person who is a judge are not protected by judicial immunity.[10]

The status of "being" a judge is not the test. In other words, judicial immunity does not necessarily exist just because a defendant is a judge, nor is it necessarily absent if a defendant is not a judge.

Judicial immunity covers actions within the judicial portion of the job description of a judge. This analogy is too simple for courts or commentators. If there was a job description for a judge, what would it be? What part of the job is judicial?

Judges decide issues in courts. Generally those decisions are judicial. Judges may buy legal pads. That is not judicial. Judges may hire secretaries, administrators, court reporters, probation officers, auditors, etc. That act is not judicial. Making general[14] rules for lawyers or others to follow is not judicial.[15]

Clearly, part of a judge's job is judicial, and part is not. Part is administrative. Part may be hiring and firing. Part may be buying. Part may be legislative. The only part for which there is judicial immunity is the judicial part of the job. There is no judicial immunity for liability arising from hiring, firing, buying, or legislating.[16]

In general, quality is not mentioned in the hypothetical judge's job description. While we hope that every judge is wise, insightful, knowing, and thoughtful, rumor has it that some are not. Immunity covers the ignorant, unwise, and foolish. Does that language sound strong? In a way, this is what immunity is all about. If there is nothing to criticize in the judge's action, immunity would have limited importance. The real protection for the judge is for actions which are both damaging and "wrong" in some sense of right and wrong. Judicial immunity provides absolute protection from otherwise valid and serious claims for damages caused by the judge that would otherwise justify suit and a personal money judgment against the judge. It is not protection against groundless little harassing suits. It is protection against all suits. It protects well intended judges. It protects judges with evil intent. In that sense it has nothing to do with whether the judicial action was right or wrong, or good or bad. It isn't about what is fair or equitable. It is an absolute protection against claims it covers. The key issue is whether it applies to a particular claim. Whether it applies is also an issue that isn't about equity, good or bad, or doing the right thing. Whether it applies is a technical issue. If a judge is well intended, but acts outside of her jurisdiction, she has no judicial immunity. If she is well intended and acts within her job description, but outside of her judicial function, she has no judicial immunity. If she acts with evil purpose within her judicial function and jurisdiction, she is immune.

Yet, the purpose is to protect the public, not the judge, by giving people the willingness to serve as judge and by giving judges the confidence to act. By protecting the ignorant, unwise, and foolish judicial act, immunity protects the knowing, wise, and thoughtful act and frees judges to act within their authority without being second guessed in a civil damages suit. Also note that the immunity defense does not turn on whether the judicial act was wise, but on whether the judge was authorized to take the action. In other words, if the judge may decide, the judge may decide wrongly, and is immune. The job description includes making judicial decisions. It doesn't specify wise decisions or prohibit unwise decisions. The job description does require that the judge actually make the judicial decisions.

A judge who delegates decisions or acts like a clerk by taking direction from others, instead of making decisions, is acting outside of the job description. Texas judges have sometimes forgotten their proper role. Two Texas Attorney General Opinions respond to situations in which judges in El Paso and Dallas sought to delegate their authority to outside entities. In Dallas, the attorney general reminded judges that they may consider the opinions of others, but must make the decisions for the court. This topic is further developed in the Discussion.

A Texas trial Judge who, without authorization, makes group decisions with other judges, instead of making individual decisions, is also acting outside the scope of the judicial function. You might wonder if such a thing could happen, or you might think that it never does, but, judges do the most remarkable things. In El Paso, without lawful basis for doing so, judges joined together to sign a void joint "order" purporting to regulate lawyers and to purporting to regulate their own courts.[17] On its face, among its weaknesses, the order violates the basic concepts of regulation of lawyers on a statewide basis by the Texas Supreme Court, the constitutional requirements of equal protection and and constitutional prohibition against taking of property without due process. It also purported to delegate the judicial power and function to a private entity. Our analysis is limited to the judicial immunity issues. Judges are immune when they act within their judicial job description. The El Paso judges, en mass, acted outside their authority. Fortunately for all involved, the County Attorney asked the Attorney General for an opinion. The Attorney General did not reach the fundamental constitutional issues because the action of the judges was void since it was outside their job descriptions. This is the same kind of analysis that should be used to determine whether such actions are protected by immunity. This topic is further developed in the Discussion.

A judge who releases a defendant on bond may be acting within a job description. Is a judge who releases a defendant on bond because of a bribe acting outside the job description? In the case of granting bond on the merits, even if it is granted foolishly, immunity attaches. In the case of granting bond because of a bribe, rather than a decision on the merits, is there immunity?[18] The judge has no immunity from conviction for a crime, as Judge Maloney and the other Illinois judges who were collared in Operation Greylord can attest.[19] Whether the judge has judicial immunity from civil suit is less clear. No public policy is apparent to support judicial immunity for basing orders on bribes. It is clear that conspirators who bribe a judge have no immunity from civil suit for money damages.[20] Judges may be removed for basing orders on bribes.[21] Are judges constitutionally disqualified because of a personal "interest" if they base rulings on bribes? There is some authority for the idea that a judge who acts because of a bribe is personally immune from civil suit for money damages even though those who pay the bribe are not.[22] This topic is further developed in the Discussion.

Another example is an execution of a defendant by a judge. No, not an execution merely ordered by a judge, but an execution carried out by a judge. Let's look at two situations.

1. If a judge walking to the courthouse is accosted by a thief, and the judge kills the thief with her trusty Uzi, the judge's immunity defense will fail. There is no pending pleading, case, or jurisdiction. The shooting is not a judicial act. If the thief's estate sues, the judge will have to rely on other defenses. The fact that she is a judge is irrelevant.

2. In a death penalty criminal case, a judge may order a defendant's execution. Does a judge have judicial immunity for personally carrying out the execution by shooting the defendant with an Uzi in open court from the bench? Maybe. Maybe not.

In Gregory v. Thompson, during court proceedings, Judge Thompson, in order to preserve order and civility in his courtroom, assaulted a person in the courtroom. The judge was denied immunity and successfully sued for damages.

If a judge orders the bailiff to immediately execute a defendant in open court, the judge is giving an erroneous order. An argument can be made for immunity. After all, it is just an order, not a physical act. There is jurisdiction over the court and the case. The judge may order the defendant executed. Perhaps the method of execution is merely an irreversible[23] error. The only issue is whether this is a "judicial act" or "judicial function."

In the odd case of Mireless v. Waco,[24] a divided United States Supreme Court, in an unsigned majority per curium opinion, upheld judicial immunity for a judge who directed officers "to forcibly and with excessive force seize and bring [the public defender] into his courtroom." The officers did precisely as instructed. The U. S. Supreme Court majority found this order within the judge's job description, with the disturbing "excessive force" language insufficient to change that result. Therefore, the judge had judicial immunity.

If a judge, upon conviction, orders the instant execution of a defendant by the bailiff, the judge might be immune from civil money damages for the killing. If the judge orders the foreman of the jury to carry out the execution, the argument for immunity is less convincing since jurors never do such things. If the execution is ordered for a misdemeanor and carried out by the bailiff, the case for immunity raises issues of the court's authority. No judge should take undue comfort in this speculation. The Mireless per curium opinion is a weak one. It is an unsigned opinion in a case that was not argued. Two justices considered the record inadequate for a decision, and the majority conclusion was considered wrong by a third justice. The court may ultimately reverse Mireless or "distinguish" it into insignificance. Bailiffs should also take care. Judicial immunity protects the order and the one issuing it, not the act of carrying out the order.[25] Judges should remember that judicial immunity from civil damages suit may not provide solace if a judge is convicted of a crime. This topic is further developed in the Discussion.

Some may find an analogy to trade union rules helpful. Another exaggerated example can be useful. Imagine union rules in the movie industry that prohibit the camera operator from plugging the camera's power cord into the electrical outlet. Another union controls that task. Jobs are carefully defined and the lines between them may not be crossed. If the camera operator plugs in her camera, she is acting outside her job description. She might be punished by the union for her act because it is outside her job description.

Now, think about a judge's role. The judge presides over court. If the judge mops the marble floor in the courtroom, leaving a slick wet floor and causing a juror to slip and fall, is the judge immune? While we haven't seen that case, the answer should be that moping the courtroom floor is not a "judicial" function and the judge is not immune when acting in a janitorial role. In keeping with the analogy, we might say that, if a judge who violates the union rules by performing the job of another trade union, the judge within the judicial job description is not engaging in a "judicial act." The judge does not have jurisdiction, has no judicial immunity, and must rely on the slippery defense of janitorial immunity.

If a judge is entitled to judicial immunity, that judicial immunity is limited to the judge.[26] If there are multiple defendants sued along with the judge, other defendants do not share the judge's judicial immunity. The other defendants may have their own immunity, but a judge's judicial immunity does not cover co-defendants. Judicial acts are typically the acts of one person. That person might have judicial immunity. If so, that person's judicial immunity does not shield anyone else.

For example, even if a judge has immunity for an act related to a case, conspirators do not have immunity. In Dennis v. Sparks,[27] the United States Supreme Court held that those who were sued for bribing a Texas judge had no immunity even if the judge had immunity. People paying the bribe to purchase a judicial act are subject to suit. People who bribe a Texas judge commit a crime. They may also be sued for money in civil courts. This topic is further developed in the Discussion.

RICO raises some interesting issues. There may be criminal liability under criminal RICO for the judge and all participants in a RICO conspiracy to control the courts. What about civil RICO? Civil RICO can impose liability on all participants, even those who were involved in the conspiracy but did not personally engage in RICO's "predicate racketeering acts." If a judge is bribed and enters an order in exchange for the bribe and civil RICO applies, is the judge liable in the role as a conspirator whether or not the judge is immune for the judges own "judicial act?" The law has not developed on these issues. This topic is further developed in the Discussion.

It is best to focus on the basic concepts. Judicial immunity is for acts within the job description. The purpose of judicial immunity is to promote the public policy of judges carrying out their judicial duties without fear of suit or liability. Judicial immunity is not to protect judges acting outside of their job description.

The public policy is designed to make the judicial system work. It is not designed to protect judges. Protection of judges is an incidental side effect. Any lack of protection of judges is because such protection is not needed for the public interest. Judicial immunity is not about the judge. It isn't personal. It exists to promote the public's interest, not the judge's interest.

Judicial Immunity developed when the King could not be sued and the judges were representatives of the King. The concept does not translate to the United States. Judicial immunity is explained as a protection that allows judges to perform their duties without fear of suit. The premise is that this is good. Apparently there is concern that those who fear suits may not perform well, or that those who fear suits will not take a job that is subject to suits. Some may wonder what makes judges special. Let's compare judges to surgeons. Assume that you are in two settings. You are injured, giving rise to surgery and a law suit. You are dependent on a brain surgeon and a judge. Accept for a moment that a person who might be sued for a mistake will not perform their job well. If you could choose only one to be immune, would you immunize the surgeon and receive good surgical results at the expense of no judicial immunity and unfortunate litigation rulings, or would you chose to immunize judicial decisions and while leaving a surgeon who errs liable to suit? Judges think judicial immunity is more important. They immunize themselves instead of surgeons. Is this mere self interest, of is it justifiable?

Consider the second argument. Some good people would not become judges if they might be sued, so suits should not be allowed. Do suits against brain surgeons discourage good people from becoming brain surgeons? Judges think that discouraging people from becoming judges is a problem warranting immunity, but discouraging people from becoming brain surgeons is not a problem. Apparently judges think that judges are special, but brain surgeons are like airport cabs - if you miss one, another will be along any minute. Brain surgeons may not agree. But then, plumbers, accountants, lawyers, car manufacturers, drivers, trustees, and corporations may also disagree. Indeed, anyone who lacks immunity may disagree. But, judges make the rules and enforce the rules, and judges have decided to immunize themselves. They insist that they do it because it is in the public interest, not because it is in their own interest. They are not interested in a serious discussion of the issue, much less criticism of their view. So, in deference to judicial sensitivities, we will not criticize. Indeed, we will endorse the view that judges are special. After all, they say so, and they are the judges, so what they say is accepted as fact just because they say it.

"When applied to the paradigmatic judicial acts involved in resolving disputes between parties who have invoked the jurisdiction of a court, the doctrine of absolute judicial immunity has not been particularly controversial. Difficulties have arisen primarily in attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges. Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches." Forrester v. White, 484 US 219, 98 L Ed 2d 555,565, 108 S Ct 538 (US 1988)

Absolute judicial immunity exists if the act is a "judicial" act that occurs in a "judicial" setting. There are two requirements. One is the nature of the act. The other is the jurisdiction to perform the act.

". . . [Judicial] immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.[28]

"Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.[29] Mireles v. Waco, 502 US 9, 116 L Ed 2d 9, 14, 112 S Ct 286 (US 1991)

"The Supreme Court has made it clear that the doctrine of immunity should not be applied broadly and indiscriminately, but should be invoked only to the extent necessary to effect its purpose.[30] We also must look beyond the status of the party seeking immunity and consider the nature of the conduct for which immunity is sought.[31]" Gregory v. Thompson, 500 F.2d 59, 63-64 (9th Cir. 1974)

"...Once again, it was the nature of the function performed, not the identity of the actor who performed it, that informed our immunity analysis." Forrester v. White, 484 US 219, 98 L Ed 2d 555,566, 108 S Ct 538 (US 1988)

"[A]s the language in Stump indicates, the relevant inquiry is the 'nature' and 'function' of the act, not the 'act itself.'[32] In other words, we look to the particular act's relation to a general function normally performed by a judge...." Mireles v. Waco, 502 US 9, 116 L Ed 2d 9,15, 112 S Ct 286 (US 1991)'

Absolute judicial immunity is limited to acts of a judge acting in the normal role of a judge.[33] Judge Thompson learned that acting outside his judicial role may not be protected by judicial immunity, even when the action occurs while presiding over a court in which a case is being heard.

"Gregory sued for damages for violation of his civil rights under 42 U.S.C. § 1983. His complaint, supported by testimony in a trial to a jury in the District Court for the District of Arizona, was that he was subjected to an assault and battery by [justice of the peace Thompson] in the latter's courtroom. The court entered judgment on a jury verdict in the amount of $1,500 actual damages and $500 punitive damages.

"On this appeal, Judge Thompson contends that two essential elements of a civil rights claim are lacking and that he should have the protection of the doctrine of judicial immunity. We reject both contentions and affirm the decision below." Gregory v. Thompson, 500 F.2d 59, 61 (1974)

"Judge Thompson ... emphatically told Gregory to leave the courtroom. Gregory's answer was, 'O.K., you throw me out.' The judge left his desk in the courtroom and did just that. It appears that he forced Gregory out the door, threw him to the floor in the process, jumped on him, and began to beat him. The judge's secretary ran to the sheriff's office down the hall, and two deputy sheriffs came to Gregory's rescue." Gregory v. Thompson, 500 F.2d 59, 61 (1974)

"[O]ur inquiry must be to whether Judge Thompson acted in the clear absence of all jurisdiction. Appellant contends that a judge has the inherent power to maintain order in the courtroom and that he was exercising this power when he used force to evict Gregory from his courtroom. He claims, therefore, that his assault on Gregory was at most in excess of his jurisdiction, but certainly not in the clear absence of all jurisdiction.

"This argument misses the mark. When courts have spoken of immunity for acts within the jurisdiction of a judge, they have declared that the doctrine insulates judges from civil liability 'for acts committed within their judicial jurisdiction,' or 'for acts within [their] judicial rule,' Pierson v. Ray,[34] or for 'their judicial acts.' Bradley v. Fisher.[35] Thus judicial immunity does not automatically attach to all categories of conduct in which a judge may properly engage, but only to those acts that are of a judicial nature.

"What constitutes conduct falling within that range must, in large part, be determined by looking at the purpose underlying the doctrine of judicial immunity. Official immunity, after all, 'is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.' Barr v. Matteo.[36] " Gregory v. Thompson, 500 F.2d 59, 61 (9th Cir. 1974)

"The Court of Appeals for the Ninth Circuit . . has held that a justice of the peace who was accused of forcibly removing a man from his courtroom and physically assaulting him was not absolutely immune.[37] While the court recognized that a judge has the duty to maintain order in his courtroom, it concluded that the actual eviction of someone from the courtroom by use of physical force, a task normally performed by a sheriff or bailiff, was 'simply not an act of a judicial nature.'[38] And the Court of Appeals for the Sixth Circuit held in Lynch v Johnson,[39] that the county judge sued in that case was not entitled to judicial immunity because his service on a board with only legislative and administrative powers did not constitute a judicial act." Stump v. Sparkman, 435 US 349, 55 L Ed 2d 331, 342 98 S Ct 1099, footnote 10 (1978)

Some judge's actions are not protected by judicial immunity even though they are within the judge's authority. In Forrester, the U.S. Supreme Court held that absolute judicial immunity did not apply to a claim against a judge by a probation officer fired by the judge:

"This case requires us to decide whether a state-court judge has absolute immunity from a suit for damages under 42 USC § 1983 for his decision to dismiss a subordinate court employee. The employee, who had been a probation officer, alleged that she was demoted and discharged on account of her sex, in violation of the Equal Protection Clause of the Fourteenth Amendment. We conclude that the judge's decisions were not judicial acts for which he should be held absolutely immune." Forrester v. White, 484 US 219, 98 LEd2d 555, 561, 108 SCt 538 (1988)

In Forrester, the Supreme Court held that immunity did not apply and seemed uncomfortable with an expansive view of judicial immunity.

"In the case before us, we think it clear that Judge White was acting in an administrative capacity when he demoted and discharged Forrester. Those acts--like many others involved in supervising court employees and overseeing the efficient operation of a court -- may have been quite important in providing the necessary conditions of a sound adjudicative system. The decisions at issue, however, were not themselves judicial or adjudicative. As Judge Posner pointed out below, a judge who hires or fires a probation officer cannot meaningfully be distinguished from a district attorney who hires and fires assistant district attorneys, or indeed from any other executive branch official who is responsible for making such employment decisions. Such decisions, like personnel decisions made by judges, are often crucial to the efficient operation of public institutions (some of which are at least as important as the courts), yet no one suggests that they give rise to absolute immunity from liability in damages under § 1983." Forrester v. White, 484 US 219, 98 L Ed 2d 555,566, 108 S Ct 538 (1988)

The Supreme Court has indicated reluctance to broaden judicial immunity outside the narrow scope in which it applies.

"Absolute immunity, however, is 'strong medicine, justified only when the danger of [officials' being] deflect[ed from the effective performance of their duties] is very great.'[40] (Posner, J., dissenting). The danger here is not great enough. Nor do we think it significant that, under Illinois law, only a judge can hire or fire probation officers. To conclude that, because a judge acts within the scope of his authority, such employment decisions are brought within the court's 'jurisdiction,' or converted into 'judicial acts,' would lift form above substance. Under Virginia law, only that State's judges could promulgate and enforce a Bar Code, but we nonetheless concluded that neither function was judicial in nature.[41]

"We conclude that Judge White was not entitled to absolute immunity for his decisions to demote and discharge Forrester...." Forrester v. White, 484 US 219, 98 L Ed 2d 555, 567, 108 S Ct 538 (1988)

The word "jurisdiction" has a multifaceted and somewhat unusual meaning in the judicial immunity context. For judicial immunity purposes, "jurisdiction" may encompass concepts of "plenary power" as well as the question of whether a particular person has authority to act as judge, whether a case exists, whether a court's jurisdiction has been activated, and whether a court has subject matter jurisdiction, although only the word "jurisdiction" is used. It can be said that this concept encompasses all issues related to the authority of the individual to perform the kind of act in the particular case in the particular court as well as the power of the court to act in that manner in that kind of case.

For example, if a court has the authority to mandate sterilization of a child, the court has jurisdiction, but a judge may not enter such an order unless a pleading is filed to activate that court's jurisdiction.[42]

If a pleading is filed in a Texas constitutional county court seeking to adjudicate a bankruptcy or construe an inter vivos trust, there is no jurisdiction because the court lacks subject matter jurisdiction even though there is a pleading.

If a Texas judge is constitutionally disqualified, validly objected to, subject to an unresolved motion to recuse, or is a visiting judge whose appointment terminated, the lack of authority to preside might be described as a lack of jurisdiction. [For a detailed explanation of some of these concepts which deprive a judge of authority or "jurisdiction" see the Texas law continuing legal education courses on Texas judge recusation, objection, appointment, and disqualification YouKnowItAll.com.]

A Texas judge who causes damage by acting in a case despite disqualification or valid objection terminating the judge's authority is subject to the risk of a damage suit which might clarify Texas judicial immunity law in that circumstance.

In a mandamus context, the Texas Supreme Court has specifically stated that Judge Street lacked "jurisdiction" after a valid objection to Judge Street was filed. Fortunately, Judge Street was prevented from carrying out the possible illegal arrest, fine, or confinement which he had threatened.

"Steven R. Dunn, the plaintiff's attorney in the underlying action, filed a timely objection to Respondent, a visiting judge assigned to preside over the case. Respondent sustained the objection, but then proceeded to sign an order requiring Dunn to appear at a later date to show cause why he should not be held in contempt for failing to appear in court on the day the underlying action was set for trial. Dunn seeks mandamus relief ordering Respondent to vacate the show cause order. Because Respondent did not have jurisdiction[43] to make this order after Dunn's timely objection, and because mandamus is the appropriate remedy to rectify Respondent's abuse of discretion, we conditionally grant the writ." Dunn v. Street[44]

In short, "jurisdiction" for immunity purposes is fuzzy multifaced terminology encompassing whether the judge has authority to take the action which gave rise to the suit. The requirements seem to include all of the following elements:

(1) The court must have subject matter jurisdiction which gives potential jurisdiction over the matter.

(2) There must be a citation, petition, complaint or other pleading or paper filed by a party with the court, to activate jurisdiction over the matter.

In Stump v. Sparkman,[45] the U.S. Supreme Court focused on activation of jurisdiction caused by the filing of a petition on a matter within the subject matter jurisdiction of the court. Judge Stump was authorized to preside over the court and the case. The petition activated the court's jurisdiction and authorized the judge to act. The judge's action was within the court's jurisdiction and was a judicial function. Thus, where the court has subject matter jurisdiction, and the judge has authority to preside over such a case in that court, the key which gave Judge Stump judicial immunity was the petition which activated the court's jurisdiction and the nature of the judge's act, which was a judicial act within the judicial function.

Some believe that the action of Judge Stump was despicable. That is irrelevant. Immunity is not based on whether the judge did a good thing. Instead the issue is whether the judge had authority to do what was done even if doing so was erroneous, or even despicable.

"The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him." Stump v. Sparkman, 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, p.338-339 (1978)

"Although under that case a circuit judge would err as a matter of law if he were to approve a parent's petition seeking the sterilization of a child, the opinion in A.L. v G.R.H. does not indicate that a circuit judge is without jurisdiction to entertain the petition. Indeed, the clear implication of the opinion is that, when presented with such a petition, the circuit judge should deny it on its merits rather than dismiss it for lack of jurisdiction."[46] Stump v. Sparkman, 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, p.340 (1978)

"Of particular significance to the present case, the Court in Summers[47] noted the following: '...the Court took cognizance of the petition and passed an order which is validated by the signature of the presiding officer.'[48] Because the Illinois court took cognizance of the petition for admission and acted upon it, the Court held that a case or controversy was presented....

"The relevant cases demonstrate that the factors determining whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge Stump's approval of the sterilization petition was a judicial act.... Because Judge Stump performed the type of act normally performed only by judges and because he did so in his capacity as a Circuit Court Judge, we find no merit to respondents' argument that the informality with which he proceeded rendered his action nonjudicial and deprived him of his absolute immunity." Stump v. Sparkman, 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, p.341-43 (1978)

"The Indiana law vested in Judge Stump the power to entertain and act upon the petition for sterilization. He is, therefore, under the controlling cases, immune from damages liability even if his approval of the petition was in error." Stump v. Sparkman, 435 US 349, 55 LEd 2d 331,344, 98 SCt 1099 (1978)

If judicial actions which are protected by judicial immunity are part of a conspiracy, the other conspirators may be liable for actions for which the judge is immune.

Dennis v. Sparks[49] is a United States Supreme Court opinion about corruption in Texas courts. The court held that those who are not judges but conspire to corrupt the court are not protected by immunity.

Turner v. Upton County,[50] while not a judicial immunity case, is an immunity case from west Texas in which conspirators do not obtain immunity by conspiring with someone who had immunity.

Kermit Construction involved a receiver who enjoyed judicial immunity.[51] The issue was whether others were protected by judicial immunity just because the receiver was protected. The court held that the conspirators other than the receiver do not have immunity. Those who were involved, but were not the receiver were not immune.

"The remaining defendants are not so fortunate; they cannot seek the shelter of judicial immunity from liability under §1983. Although not themselves state officials, the complaint charges that they conspired with the receiver, and this is action 'under color' of state law.[52] That the receiver is himself immune from damages makes no difference. We cannot, therefore, say that the complaint does not state a cause of action under § 1983 against the bank and the corporation, and we cannot affirm a dismissal on the pleadings of the conspiracy claim." Kermit Const. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1976)

If a judge participates in a conspiracy involving both immune actions and actions which are not immune, the immune acts may not be the basis for suit against the judge, while the acts which are not immune are subject to suit and judgment against the judge and all actions, whether immune or not, may form the basis of suit against the conspirators who are not protected by judicial immunity.

"[A]ll parties to an alleged section 1983 conspiracy need not be state actors or charged in the same capacities for liability to attach to all -- even if one of the coconspirators is absolutely immune from liability for his own actions as a participant.[53]" Turner v. Upton County, Texas, 915 F.2d 133, 137, footnote 6 (5th Cir. 1990)

"Just as the alleged actions of the sheriff were, under the circumstances, the actions of the county for section 1983 purposes, so too the alleged actions of the elected District Attorney may have been, even though he covered more than this county. The sheriff's and the district attorney's alleged participation in the conspiracy, if proven, will suffice to impose liability on the county.

'The contention that a conspiracy existed which deprived the petitioner of rights guaranteed by federal law makes each member of the conspiracy potentially liable for the effects of that deprivation. Liability arises from membership in the conspiracy and from traditional notions that a conspirator is vicariously liable for the acts of his co-conspirators. Liability does not arise solely because of the individual's own conduct. Some personal conduct may serve as evidence of membership in the conspiracy, but the individual's actions do not always serve as the exclusive basis for liability.[54] In stating that the county could be held liable not only for the sheriff's participation in the conspiracy, but could be held directly or vicariously liable as well for the actions of his alleged coconspirator, we carefully distinguish this premise for vicarious liability from that prohibited by Monell, in which 'the sole nexus between the employer and the tort is the fact of the employer-employee relationship.[55]'

"When the official representing the ultimate repository of law enforcement power in the county makes a deliberate decision to abuse that power to the detriment of its citizens, county liability under section 1983 must attach, provided that the other prerequisites for finding liability under that section are satisfied. The district court erred in absolving the county of section 1983 liability." Turner v. Upton County, Texas, 915 F.2d 133,137-38 (5th Cir. 1990)

"The county contends that it cannot be subject to liability because it did not authorize the sheriff to violate the law. This argument is without merit. Where a final policymaker abuses the powers vested in his position to the detriment of a citizen, that abuse can be the basis for suit being brought under section 1983, assuming the other bases for satisfying the requirements of that section are properly alleged." Turner v. Upton County, Texas, 915 F.2d 133, 137, footnote 3 (5th Cir. 1990)

Texas judicial immunity cases are generally weak cases. The plaintiff's case is generally a weak little case. Courts of appeals have dealt with the aftermath of speeding tickets, a messy goat, a party who found it emotionally distressing to endure a trial, a void order to show cause, and a one dollar judgment.

The affirmative defense of judicial immunity, even when apparently valid, is sometimes poorly presented. Some plaintiff's cases are hard for the court to take seriously. A suit against a judge is not any other judge's favorite claim. A careful and complete analysis is a chore if the case is perceived as unpleasant and frivolous. Some opinions reflect a conscientious effort by the appellate court to perform its duty carefully and completely. Some opinions combine partially correct and partially incorrect analyses. One court failed to comprehend the basic issues and produced a clearly erroneous analysis. We will examine several cases, give credit where credit is due, and point out deficiencies and errors. Questions and comments designed to stimulate your thoughts are included in the text and in the Discussion.

An affirmed summary judgment in favor of immunity is the norm. Damages are rarely discussed because the analysis does not reach that issue.

We must work with what we have, analyzing the cases seriously, regardless of the seriousness of the cases. Before we review the opinions of the courts of appeals, we turn to a leading Texas Supreme Court case in which the court reverses a one dollar judgment.

Issues: The elements of judicial immunity. Is a judge immune when the judge fails to perform a mandatory duty that arises in a judicial proceeding over which the judge has jurisdiction? If a judge violated the mandatory duty to impanel a jury, is the judge protected by judicial immunity? Does judicial immunity apply to justices of the peace?

"A criminal case against respondent, Pruitt, was pending[56] before petitioner Turner, a Justice of the Peace.[57] Pruitt pleaded 'not guilty' and demanded a jury. On advice of the County Attorney,[58] Turner refused to empanel a jury unless Pruitt deposited a jury fee. Pruitt, declining to deposit the fee, was tried and convicted by Turner, and appealed to the County Court. Thereafter, Pruitt filed this suit in the County Court seeking a recovery of damages from Turner and the surety on his[59] official bond. The County Judge dismissed the suit and Pruitt appealed. The Court of Civil Appeals reversed the judgment of the County Court and rendered judgment in favor of Pruitt for one dollar and costs.

"...We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

"There is no question but that the Justice of the Peace Court over which Turner presides had jurisdiction of the criminal case pending against Pruitt.[60] Neither is there any question but that Pruitt was entitled to a jury trial without depositing a jury fee. [61] In the absence of a waiver by Pruitt, Turner was under a mandatory duty to empanel a jury; he had no discretion in the matter.

"The majority of the Court of Civil Appeals were moved to hold Turner subject to tort liability because his duty to empanel a jury was a ministerial rather than a judicial duty, i. e., he had no discretion in the matter. That conclusion of the majority is understandable inasmuch as it is supported by expressions in opinions of this court and in legal encyclopedias, some of which are quoted in the majority opinion. However that may be, we are convinced it is an unsound conclusion inasmuch as the duty Turner refused to perform was one arising in the course of a judicial proceeding over which he had jurisdiction. We need go no further.[62]

"As a basis for rejecting the majority's conclusion there is little of value which can be added to the dissenting opinion filed by Associate Justice Wilson of the Court of Civil Appeals. We approve that opinion.

"Tort liability of a judge for acts or conduct in the course of a judicial proceeding in which he[63] has jurisdiction cannot turn on whether he could be compelled by writ of mandamus to perform a particular duty or refrain from doing an unauthorized act. Writs of mandamus issue to control the conduct of an officer of government, judicial or administrative, only when the duty to do the act commanded is clear and definite and involves the exercise of no discretion-that is, when the act is ministerial.[64] It is unthinkable that a judge would be subject to tort liability in the many cases in which writs of mandamus have issued from this court requiring or compelling the doing of a particular act because the duty of the judge was clear and ministerial and did not involve the exercise of discretion. See State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279, 286 (District Judge required to expunge orders from docket); Crane v. Tunks, Tex., 328 S.W.2d 434 (District Judge required to amend order of discovery); Southland Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731 (Requiring entry of judgment); Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632 (Requiring dismissal of case); Coastal States Gas Producing Co. v. Miller, Tex., 329 S.W.2d 853 (Requiring judge to fix bond and permit entry on land).[65] These cases could be multiplied many times over.

"The same reasons underlying immunity of district judges from tort liability for acts performed or not performed in judicial proceedings require a conclusion that justices of the peace should enjoy a like immunity when acting in the course of judicial proceedings of which they have jurisdiction.[66] The mere fact that in the course of such a proceeding a justice of the peace may refuse, but by writ of mandamus be compelled, to perform a clear legal duty, involving the exercise of no discretion, will not subject him to tort liability." Turner v. Pruitt, 342 S.W.2d 422 (Tex. 1961)

It is interesting to note that the Texas Supreme Court did not discuss Ex parte Virginia a United States Supreme Court which held that a judge was liable for excluding a racial group from a jury. What is it about denial of the clear and absolute right to a jury which warrants immunity if the exclusion of one group of potential jurors does not warrant immunity? Is the distinction apparent from Turner? Why didn't the Texas Supreme Court discuss Ex parte Virginia? Was it unworthy of discussion? Why?

In Ex parte Virginia, 100 U.S. 339, the Court held that a judge who excluded Negroes from juries could be held liable under the Act of March 1, 2023 (18 Stat. 335), one of the Civil Rights Acts. The Court assumed that the judge was merely performing a ministerial function. But it went on to state that the judge would be liable under the statute even if his actions were judicial.[67] It is one thing to say that the common-law doctrine of judicial immunity is a defense to a common-law cause of action. But it is quite another to say that the common-law immunity rule is a defense to liability which Congress has imposed upon "any officer or other person," as in Ex parte Virginia, or upon "every person" as in these cases. Justice Douglas, dissenting, Pierson v. Ray, 386 U.S. 547 (1967)

Does Turner conform to the public policy argument that the purpose of judicial immunity is to protect judges who are making difficult decisions? If Turner had been decided the other way, would a judge be fearful of deciding whether to allow a jury trial? Would that be bad? Is it good or bad public policy to immunize judges from liability for denying a clear and fundamental right? Is Turner premised on the assumption that judges can't be expected to know that defendants in criminal cases are entitled to a jury without payment of a jury fee? Today in Texas, do judges deny juries in punitive proceedings unless a jury fee is paid in clear violation of the law?[68]

The reversed court of appeals opinion and dissent in Pruitt v. Turner is below. The Supreme Court reversed and endorsed the dissent. The dissent carries weight because the Texas Supreme Court endorsed it. The majority is interesting as an educational artifact.

"Plaintiff Pruitt filed this suit for damages in the amount of $975 against defendant Turner (and his bondsman, Southwestern Indemnity Company), in the County Court of Coryell.

"The issue presented is whether a Justice of the Peace is immune to damages in tort for denying a defendant who pleads not guilty, a jury trial without the defendant posting a jury fee. Art. 1, Sec. 10 of the Constitution of Texas, provides:

'Rights of accused in criminal prosecution Sec. 10. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.'

'If the accused does not waive a trial by jury, the justice shall issue a writ commanding the proper officer to summon forthwith a jury of six men qualified to serve as jurors.'

'The amount due jurors and bailiffs shall be paid by the county treasurer, upon the certificate of the proper clerk or the justice of the peace, stating the service, when and by whom rendered, and the amount due therefore.'

"From the foregoing, there can be no question but that Pruitt was entitled to a jury without depositing a jury fee; and that the Justice of the Peace was not justified in refusing to summon a jury to determine his case.

"The record reflects that the foregoing provisions of our Constitution and Code of Criminal Procedure were affirmatively brought to the attention of the Justice of the Peace. We think their provisions are so clear that any person should understand their meaning from a reading thereof.

"We revert to the issue for determination: Under the facts, is the Justice of the Peace and his bondsman subject to civil liability for denying a jury to a defendant who pleads not guilty and demands a jury trial.

'Under the broad principles applicable to public officers generally, a judge is not civilly liable for acts performed in the exercise of his judicial functions, even though they were willful or malicious. * * *

'The doctrine of judicial immunity does not, however, apply with respect to acts done in a purely ministerial capacity; as to such acts a judge stands in the same position as any other person.'

"26 Tex.Jur. pp. 800, 801, in discussing the civil liability of a justice of the peace, says:

'the rule that a judge is not civilly liable for anything done by him in the exercise of his judicial functions * * * gives absolute immunity to a justice of the peace acting in his judicial capacity and within his jurisdiction. * * *

'Acts by a judicial officer in a ministerial capacity are on a different footing; as to such, it is no defense that the justice acted in good faith and in intended fulfillment of his official duty. The distinction between judicial and ministerial acts depends on whether a discretion has been conferred.'

"In the early case of Bumpus v. Fisher, 21 Tex. 561, 567, our Supreme Court in discussing the liability of a judge says:

'While acting within the line of their authority, they are protected as to errors of judgment, otherwise they are not protected. In all the cases, where protection is given to the judge, giving an erroneous judgment, he must be acting as judge.'

"Our Supreme Court in Rains v. Simpson, 50 Tex. 495, after laying down the rule that judicial officers are not liable to personal action for official acts within their jurisdiction; limits the immunity to judicial actions and makes an exception of ministerial actions. Such case holds:

'The application of the principle of immunity from private suit has been a source of difficulty, the practical solution of which depends upon whether the given act was ministerial or judicial. As a general rule, in the former case the action will, and in the latter it will not, be sustained.

'The distinction between the two is thus defined: 'Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.'

"The foregoing definition of and distinction between judicial acts and ministerial acts is quoted and adopted in Jarnagin v. Garrett, Tex.Civ.App., 69 S.W.2d 511, W/E Ref.

'Sec. 20 (Justices of the Peace--Liabilities) Ministerial Acts--The general immunity of a justice of the peace from liability for judicial acts within his jurisdiction does not extend to ministerial acts, in the performance of which a justice of the peace is responsible for error and misconduct in like manner and to the same extent as all other ministerial officers. Thus, many cases make a distinction between the judicial and ministerial acts of a justice, and hold that justices of the peace are responsible in a civil suit to individuals for all damages arising from every illegal act they may have done in the exercise of their ministerial duties."

"'Sec. 21--Particular acts as Ministerial or Judicial--Generally speaking, where the law defines and prescribes the duties to be performed by an officer with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is deemed to be ministerial in character, but where the act to be done involves the exercise of discretion or judgment, it is regarded as judicial in character * * *.'

"13 A.L.R. 1345 lays down the general rule of immunity of judges for acts performed as such, so long as the judge acts within his jurisdiction and in a judicial capacity; and (on page 1347) continues:

'A distinction is to be noted between acts which are judicial in their nature, and those of an administrative or ministerial character. The protection extends only to judicial decisions or acts of a judicial character, and not to mere administrative acts.'

"It is pointed out that in a ministerial function, a line of conduct is marked out and the judge has nothing to do but follow it; and may be held liable for any failure to do so which results in the injury of another.[69]

"This poses the question: Was the act of providing a jury for the defendant a judicial function or a ministerial function?

"We are not here dealing with the question of the jurisdiction of the Justice of the Peace, nor with complaint with the manner in which he has performed a judicial function. We are dealing solely with his failure to perform a statutory duty prescribed explicitly by the statutes; that is to impanel a jury for a defendant in a criminal case, unless such defendant has affirmatively waived such jury. We are dealing with the Justice's failure to perform one of his clerk's functions; and which function is prescribed with such exactitude by our statutes, that it is ministerial under our Supreme Court's definition.

"We think our Constitution and Code of Criminal Procedure prescribed the duties of the Justice of the Peace to provide a jury in the instant case, with that certainty, precision and exactitude that is free from all doubt. The act to be performed was therefore ministerial, and not judicial, and the refusal of the Justice of the Peace to provide a jury subjects him to civil liability for damages.

"Defendant relies on the case of Davis v. Burris, 51 Ariz. 220, 75 P.2d 689. In that case the Justice of the Peace refused to approve an appeal bond and transmit the record to the appellate court, upon request, after a defendant's conviction for drunk driving, upon a plea of guilty. A general statute provided for appeals from the Justice Court. The Arizona Supreme Court held in that case, that determination of the right to appeal after entering a plea of guilty, was a judicial question; and a question upon which some of the highest courts of the land were not in accord; and that it was not known until the Arizona court spoke (in the case involving these parties) whether one who had pleaded guilty could appeal or not. We think this case inapplicable to a determination of the case at bar." Pruitt v. Turner, 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960) (reversed)

Since the Supreme Court reversed the judgment, it did not reach the amount of damages. Most cases find immunity and do not reach the damages issue. The court of appeals did reach the damages issue. The damages analysis by this court is valued for its rarity.

"This brings us to the question of what damages plaintiff Pruitt has shown himself entitled to. Pruitt alleges that he was damaged $975 in actual and exemplary damages. Exemplary damages cannot be recovered since plaintiff's petition on its face reflects that the Justice of the Peace action was not malicious. Plaintiff says he was convicted by the Justice of the Peace without a jury, and in consequence was forced to appeal his case to County Court at a cost of $200 for attorney's fees; and that this constitutes an actual damage. Such is too speculative. There is no way for anyone to know whether the jury, if impaneled, would have convicted or acquitted plaintiff. This, as a matter of law, negates plaintiff's right to actual damages, not only for attorney's fees, but also for loss of time, humiliation and mental anguish. Plaintiff is therefore entitled to recover nominal damages only.[70]

"Since the opinion of our Supreme Court in Rains v. Simpson, supra (as well as the other authorities cited), are comprehensive and clear, and since the Supreme Court has not seen fit to change such rule (Jarnagin v. Garrett), and since we are of the view that such authorities are applicable to the factual situation here involved, it is our duty to reverse the judgment of the Trial Court, and render judgment for plaintiff Pruitt against defendants Turner and Southwestern Indemnity Company for $1 and costs. Pruitt v. Turner, 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960) (reversed)

Justice Wilson's dissenting opinion, which was endorsed by the Supreme Court, included the following.

"The opinion applies the wrong criterion in this case, and in my opinion directly opposes the settled law throughout this country, at common law and in Texas. The majority subjects the action of a judge to the test of whether his act is judicial or ministerial. This is possibly a proper test when the judge or justice of the peace is acting in an administrative or quasi-judicial capacity as in Rains v. Simpson or Jarnagin v. Garrett, but in each of those cases liability was denied.

"The true test however, in a judicial proceeding, is whether the judge or justice is acting within the jurisdiction. This, in truth, is the actual holding in Rains v. Simpson. There the justice of the peace was not acting in a judicial proceeding. He was performing an administrative function as the head of the present equivalent of the commissioner's court in refusing to approve a tax collector's bond. He was not, in the present sense, acting in a judicial proceeding. Nevertheless, the Supreme Court first announced the guiding rule: 'It was a settled principle at the very foundation of well-ordered jurisprudence that every judge, whether of a higher or lower court, in the exercise of the jurisdiction, conferred on him by law, had the right to decide according to his own free and unembarrassed convictions, uninfluenced by any apprehension of private prosecution.' No sooner had the court announced the guide than it quoted Judge Cooley, who also fixed the touchstone as being whether the officer was 'acting within the limits of his jurisdiction.' The only real answer which the court then gave to the only question involved is contained in the last sentence of the opinion: 'the action then, of the County Court being a judicial act in the exercise of the jurisdiction conferred by statute, the exceptions of the defendant's were properly sustained.' It is important to note the court there spoke of a judicial (discretionary 'act', and not a judicial proceeding.

"We do not have to speculate as to what our early Supreme Court regarded as the determining factor of judicial immunity. The court consisting of no less an assemblage than Hemphill, Wheeler and Roberts, speaking through the latter in Bumpus v. Fisher, 21 Tex. 561, twenty-one times in the course of the opinion reiterates the essential element of whether 'the justice of the peace had jurisdiction.' There the justice of the peace was sued for an act committed in the course of a judicial proceeding. The entire case turns on decision as to whether the plaintiff was committed 'upon a charge of which the justice had jurisdiction.' The test here applicable was clearly stated: 'if the charge upon which plaintiff was tried was simple assault and battery, the justice clearly had jurisdiction and the facts showing no malice, he would clearly not be liable.' The court then consumes three pages to demonstrate he did have jurisdiction, and after reviewing the common-law development of immunity as dependent on jurisdiction, held that justices of the peace were on the same footing as judges of superior courts; that they were amenable for breach of responsibility only as were judges of superior courts; and that unless it affirmatively appeared of record they had no jurisdiction of the judicial proceedings in which they acted, they were not civilly liable. As to the present holding, that great court said, 'Public policy, and the nature of their powers and duties and the order of legal capacity that must be here employed to fill such an office, all forbid the application of such a rule to justices' acts.' The entire decision turned on existence vel non of jurisdiction.

"In 31 Am.Jur., Justices of the Peace, Sec. 28, p. 228 much of the opinion in Rains v. Simpson is quoted as a predicate for the rule I believe is controlling: 'Where a justice of the peace acts fully within his jurisdiction of the subject matter and has acquired jurisdiction of the person in the particular case, he is not liable for acts done in the case.' The convers of this rule, for the universality of which an inspection of the footnote is sufficient, is stated:[71] 'The generally accepted rule is that a justice of the peace is civilly liable when he acts without jurisdiction of the person and without general jurisdiction of the subject matter.' The identical test is paraphrased in 26 Tex.Jur., p. 800, Sec. 15, i. e., when he is 'acting within his jurisdiction.' Rains v. Simpson is among the authorities cited.

"In Mabry v. Little, 19 Tex. 337, Justice Wheeler held that even if the unlearned justice of the peace had no jurisdiction, if the plaintiff submitted to his jurisdiction he waived the trespass and an action for damages would not lie. In Anderson v. Roberts, Tex.Civ.App., 35 S.W. 416, 417, the rule is stated that even if the justice improperly determines he has jurisdiction, he cannot be held liable for his acts for 'When the state confers judicial powers upon an individual it confers him with full immunity from private suits.' The general rule is similarly stated in 51 C.J.S. Justices of the Peace Sec. 19, p. 36, and 173 A.L.R. 802. The jurisdictional test has been reiterated by such venerable authorities as Coke, Bacon, Blackstone, Kent and the ancient Dalton's 'Countrey Justice.'

"In 1613 Coke, in the case of the Marshalsea, 10 Coke Rep. 76a, summarized the holdings in the earlier Year Books relating to immunity: 'a difference was taken when a court has jurisdiction of the cause, and proceeds inverso ordine or erroneously. There no action lies. But when the court has not jurisdiction then the whole proceeding is coram non judice and actions will lie.'

"The early Supreme Court of Texas simply epitomized the common-law rule and adopted it in Texas. 'From the Year Books to the present day, this distinction between an abuse of jurisdiction and an absence of jurisdiction has been maintained. Indeed, the fact that from the 16th to the 19th centuries a large part of the local government of the country was carried on by justices of the peace acting under judicial forms, made the preservation of this distinction and its consequences a necessary safeguard to the liberty of the subject.' VI. Holdsworth, History of English Law 240.

"Appellant does not suggest the justice court had no jurisdiction. He in fact invoked it, moved to quash the complaint and called for a jury. He complains only of erroneous action of the justice of the peace within his jurisdiction. I would affirm. Pruitt v. Turner, J. Wilson dissenting 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960)

Clements involved immunity, but not pure judicial immunity. The issue involves the matters which must be plead to support a claim against someone who has an immunity defense. A complaint alleged damages from actions which are clearly within the scope of the defendant's authority, without alleging that the actions exceeded the scope of authority. The immune defendant did not respond. A default judgment was granted. The Texas Supreme Court reversed and set the judgment aside, holding, "it was error for the trial court to render default judgment when Barnes failed to allege that Clements acted outside the scope of her authority." Therefore, a plaintiff who pleads acts that, on the face of the complaint, constitute immune acts without alleging facts which defeat immunity, has not stated a complaint which can support a default judgment. Since judicial immunity is an affirmative defense which must be plead and proven by the defendant, this holding may be a surprise to some.[72]

McGough is an interesting case in which the Supreme Court determines that a judge should not dictate investment decisions. The decision was partially based on the lack of ability to sue the judge because of judicial immunity. It may have particular interest to personal injury lawyers and lawyers who represent minors, incapacitated individuals, wards, estates, and trusts, so it is included in the Discussion. It is also interesting to note that the court thinks that someone should not have immunity for making judgment calls. Judges think judges should have immunity. What is the basis for the distinction?

We turn to the court of appeals for cases in which not even a dollar was awarded, because the judicial immunity defense was upheld. First we review Kimmel, Spencer, Tedford, and Rea, which address judicial immunity competently.

The aftermath of Kimmel's speeding ticket included a suit against the presiding justice of the peace. Except for Kimmel's elaborate jurisdictional argument which the court of appeals ignored, Kimmel is an easy case.[73] The pro se plaintiff alleged that the judge acted outside the jurisdiction of the court because the proceeding was in the wrong justice of the peace precinct. The court held that this raised a venue issue, but not a jurisdictional issue. In the body of the opinion, this appears to be the only alleged basis for plaintiff's claim that the justice of the peace acted without jurisdiction. However, in a footnote[74] the court mentions some other jurisdictional issues which were of interest to the plaintiff but not the court.[75] The court ignored these issues. The courts failure to address those arguments or require summary judgment proof on those issues can be criticized, but we will also ignore those issues since they add nothing to this course.

The Kimmel court viewed the case and appeal as frivolous, and awarded sanctions for the appeal. Even so, aside from the jurisdictional omission, the court correctly analyzed the issue of the judicial immunity of the justice of the peace. It properly notes that immunity is an affirmative defense requiring that the defendant prove each element. It looked at the basic law which gives a justice of the peace judicial immunity in certain circumstances, and it determined that the court had jurisdiction over Kimmel's speeding case. The court determined that the justice of the peace provided uncontroverted summary judgment evidence that a case was pending, he had authority to preside, and the actions were judicial actions. Since lack of jurisdiction of the court over the speeding case was the only issue raised by the plaintiff, the court upheld the summary judgment.

"Even though Kimmell did not raise a fact issue with competent summary judgment proof, we must still determine whether defendant proved each element of [his] affirmative defenses[76] as a matter of law, as was [his] burden.[77][78] "

"Defendant sought summary judgment on the strength of . . . judicial immunity. . . . Justices of the peace, like other judges, are immune from tort liability for acts performed or not performed in the course of judicial proceedings over which they have jurisdiction.[79],. . . .

"Kimmell's suit seeks to impose civil liability arising out of defendant['s] performance of duties for which [he] enjoy[s] absolute immunity. Defendant's affidavit establishes that all of the actions of which Kimmell complains were taken in [his] official capacit[y] as justice of the peace. . . . Kimmell challenged defendant's assertion of immunity by contending that [he] acted beyond [his] jurisdiction in prosecuting [Kimmell] in precinct number one because [Kimmell's] case arose in precinct number two. This argument fails, however, because it raises only a question of venue, not jurisdiction. "[A] justice of the peace court has jurisdiction to try a case which arose in another precinct."[80] Defendant conclusively established that [he was] entitled to judicial immunity from tort liability, and summary judgment was properly granted on that ground." [81]

Issues: Pleading requirements, statement of a claim, summary judgment, judicial immunity as an affirmative defense, evidence required to prove judicial immunity, burden of proof, special exceptions, clerk's judicial immunity, jurisdiction of the person, activation of a court's jurisdiction over a case, §1983, judicial function, judge swearing out complaint.

"We grant appellant's motion for rehearing in part, withdraw our former opinion, and substitute the following opinion. O.B. Spencer brought suit in the trial court asserting that appellees violated his civil rights under 42 U.S.C. § 1983. The appellees, from whom Spencer sought recovery of money damages, are the City of Seagoville, Texas, a municipal corporation; Don Smith, mayor and municipal judge of Seagoville; Sherry Koleszar, Secretary of Seagoville and clerk of its municipal court; and Marian Hoy, deputy clerk of Seagoville's municipal court.

"Spencer appeals from a summary judgment granted in favor of the appellees. In two points of error, Spencer maintains that the trial court erred in rendering summary judgment for appellees because (1) there are disputed issues of fact and (2) the defenses presented by appellees do not bar his section 1983 suit. In a third point of error presented by supplemental brief, Spencer contends that summary judgment was improperly based on his failure to state a cause of action. We reverse the judgment in favor of the City and remand that cause, but we affirm the judgments in favor of the individual defendants.

"Spencer's second amended petition states that Koleszar and Hoy signed and filed complaints against him for his failure to appear in court in connection with traffic citations. Acting on these complaints, Smith issued several warrants for Spencer's arrest. Spencer claims that the warrants were legally insufficient because they were based on complaints which appeared false on their face. Pursuant to the arrest warrants, Dallas County Sheriff's deputies arrested and jailed Spencer. He alleges that these deputies, hired to act as police officers for Seagoville, treated him cruelly during both his arrest and his incarceration. He says he was later acquitted of the traffic offenses.

"Moreover, Spencer claims that his arrest and incarceration resulted from his criticism of Seagoville's administration and that Smith, Koleszar, and Hoy, employees of Seagoville, instigated his arrest and incarceration to embarrass and harass him in the presence of his friends and other Seagoville citizens. Further, Spencer alleges that he has been falsely imprisoned and maliciously prosecuted and that such actions were taken against him in violation of his constitutional right to free speech.

"The City's motion for summary judgment was based on three grounds: 1) the doctrine of sovereign immunity, (2) the plaintiff's failure to give notice to the City under the Texas Tort Claims Act,[82] and (3) the defendant's lack of control over the actions of the Sheriff's deputies. Since these are the only grounds asserted in the motion for summary judgment, we may uphold the judgment only on these grounds.[83]

"The doctrine of sovereign immunity is not an absolute bar to a section 1983 suit against the City. In Monell v. Department of Social Services of the City of New York,[84] the Supreme Court held that private individuals may directly sue municipalities under section 1983 for constitutional deprivations inflicted upon them pursuant to a governmental custom, policy, ordinance, regulation, or decision. Thus, the City's plea of sovereign immunity was not, in and of itself, enough to show that the City was entitled to judgment as a matter of law.

"To hold a city liable under section 1983 for unconstitutional acts of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.[85] In other words, the plaintiff bears the burden of showing that the city 'maintained or practiced an unconstitutional or unlawful 'policy' or 'custom,'... and second that that policy or custom 'caused' or was the 'moving force' behind the violation.'[86]

"The City's allegation in its motion for summary judgment and proof in its supporting affidavits that it had no control over the deputies might, if uncontroverted, establish that no city policy or custom caused any deprivation of rights related to the manner of Spencer's arrest or incarceration. However, even if we assume that the City established this allegation as a matter of law, we could not conclude that the City is entitled to judgment. Assuming that no policy or custom of the City caused any deprivation related to the manner of Spencer's arrest or incarceration, it still may be that a policy or custom of the City was the moving force instigating an unlawful arrest of Spencer. The motion for summary judgment makes no allegation denying this possibility; nor does the summary judgment proof negate it.

In its appellate brief, however, the City argues that Spencer did not even plead a section 1983 cause of action, since he failed to allege that some City policy or custom was the cause of his deprivation of constitutional rights. Our examination of Spencer's second amended petition reveals that the City is right about the deficiency in Spencer's pleading. But even so, we cannot uphold the summary judgment on that ground because of the City's failure to assert it in its motion for summary judgment.

"Moreover, even if the City's motion for summary judgment had pointed out Spencer's failure to state a cause of action, we could not on that basis uphold the summary judgment. Summary judgment is an inappropriate vehicle for resolving the issue of whether pleadings fail to state a cause of action.[87] When pleadings fail to state a cause of action, the proper course for the opposing party is to file special exceptions. If the trial court sustains these, and the pleadings, after an opportunity for amendment, still fail to state a cause of action, the appropriate remedy is dismissal, not summary judgment. Id. However, at least one appellate court has affirmed a summary judgment on the ground that the pleadings, after proper special exceptions and opportunity to amend, failed to state a cause of action.[88] Another has implied that it would affirm in such a case. [89] Apparently, at least a partial rationale for these opinions is that summary judgment in this situation serves as the functional equivalent of the appropriate remedy, dismissal, and that reversal is consequently not warranted.

"The City did file special exceptions in this case. However, these special exceptions do not with particularity point out the failure of Spencer's petition to plead, as a necessary element of a section 1983 cause of action, a City policy or custom that caused his allegedly unlawful arrest. Rather, the special exceptions' two references to failure to state a cause of action only assert: (1) that the portions of Spencer's original petition referring to the "actions of his Attorney and his efforts to obtain a Writ of Habeas Corpus" state no cause of action, and (2) that paragraph II of the petition (dealing with the filing of an allegedly false complaint) "is so vague and unintelligible and fraught with references to ambiguous terms so as to prevent Defendants from being able to reasonably determine any cause of action being pled ..." At best, these exceptions are in the nature of a general demurrer. Thus, they are inadequate, since special exceptions must be specific enough to inform the opposing party of the particular defect in the pleading.[90] Therefore, if the City's motion for summary judgment had asserted Spencer's failure to state a cause of action, we still could not affirm in reliance on these special exceptions. To do so would be to circumvent the protective features of the special exception procedure in contravention of the command of the Texas Supreme Court.[91]

"The City argues, in a response brief, that Spencer waived any argument concerning the impropriety of granting a summary judgment against him for failure to state a cause of action, since he did not raise the issue. The City, of course, itself waived failure to state a cause of action as support for the summary judgment by not asserting that ground in its motion for summary judgment. Furthermore, it would be unfair to require Spencer to make reply arguments to a ground the City did not assert in its motion. The import of such a holding would be to put on non-movants the burden of anticipating every ground a movant might have asserted in his motion and replying to all such grounds. The absurdity of this result undoubtedly provides at least a partial rationale for the courts' position that grounds not asserted in the motion cannot support a summary judgment on appeal.

"Thus, we must sustain the second point of error and reverse the summary judgment in favor of the City. It may seem strange to reverse the judgment when the record before us reveals no cause of action against the City, but we are required to do so in light of the inadequacies of the City's motion for summary judgment, and, alternatively, its special exceptions.

"The Supreme Court has ruled that absolute immunity extends to all judicial acts unless such acts fall clearly outside the judge's subject-matter jurisdiction.[92][93] Further, the Court has stated that:

"Disagreement with the action taken by the judge, however, does not justify depriving that judge of his immunity. Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of 'the proper administration of justice ... [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself.'[94]

see also Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judicial immunity applies even when a judge is accused of acting maliciously and corruptly).[95]

"Spencer claims that Smith was not acting within his judicial jurisdiction, but was using his position as municipal judge to 'persecute his enemies and critics.' There is nothing in our record to indicate that Smith was acting on personal vendetta when he issued the warrant for Spencer's arrest.[96] The affidavits of Smith and Koleszar both state that the actions taken against Spencer were done in their official capacities pursuant to the normal course of operation in the municipal court. Nothing in our record indicates otherwise. Accordingly, we hold that Smith was immune from liability under the doctrine of judicial immunity and summary judgment in favor of Smith was proper.[97]

"Spencer claims that the clerks of Seagoville's municipal court are not entitled to absolute judicial immunity. We disagree. There is ample authority in support of the rule that court clerks, acting in the course of their duties, have the same immunity as judges.

"In Slotnick v. Staviskey, 560 F.2d 31 (1st Cir.1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978), the plaintiff filed suit against a state court judge, the clerk of the court and others, alleging that his civil rights had been violated, pursuant to 42 U.S.C. § 1983. The trial court dismissed the case. The plaintiff appealed. The appellate court held that both the state court judge and the clerk of his court were immune from suit under section 1983. In Sullivan v. Kelleher, 405 F.2d 486 (1st Cir.1968), the plaintiff sued the clerk of a state court claiming denial of his civil rights. The trial court rendered summary judgment for defendant. On appeal the court held that the judicial immunity extends to the clerk of a court. In Davis v. McAteer, 431 F.2d 81, 82 (8th Cir.1970), the court said: "This court and others have specifically held that clerks of court are entitled to immunity the same as judges."[98]

"We realize that in Thomas v. Sams, 734 F.2d 185 (5th Cir.1984), the United States Court of Appeals for the Fifth Circuit held that a municipal court judge's swearing out a complaint was not in that case a judicial act. The court in Thomas, however, did not hold that it is impossible for swearing out a complaint to be a judicial act. The key consideration in deciding whether initiating a criminal prosecution is a judicial act is whether initiating such a prosecution is a normal function of the judicial officer.[99]

"The complaints Koleszar and Hoy signed and filed were complaints for failure to appear in court. It is conceivable that signing and filing complaints of that kind may be a normal function of municipal court clerks. Koleszar's affidavit states that she and Hoy were acting under orders of the court, in the normal course of the operation of the court, as officers of the court. Smith's affidavit confirms that they were acting as officers of the court in the normal course of the operation of the court. There is thus summary judgment evidence, which appellant did not controvert, that the clerks' signing and filing the complaints were part of their normal functions as court clerks. The City consequently established that all of the clerks' acts at issue were judicial acts. We therefore conclude that the clerks enjoyed judicial immunity with respect to them and that the summary judgment in favor of the clerks was proper.

"We reverse the judgment in favor of the City and remand that cause to the trial court. We affirm the judgments in favor of the individual defendants Smith, Koleszar, and Hoy." Spencer v. City of Seagoville 700 S.W.2d 953 (Tex.App.-Dallas 1985)

Tedford shows a serious court's serious effort to resolve a serious issue. In Tedford, the judge was the regular judge. The court had subject matter jurisdiction. The question is whether the court's subject matter jurisdiction, which provided potential jurisdiction, was activated by a case. Did the court have jurisdiction over this matter and over the defendants? The court's struggle with this issue contrasts with the Bradt court's false premise that subject matter jurisdiction is the one and only jurisdictional issue. We will analyze Bradt later. Bradt shows that a court may not comprehend the issues, while Tedford shows that a court which understands the issues may find them difficult to resolve.

"Roy E. Tedford brought suit against J. E. McWhorter for false arrest. Plaintiff alleged that McWhorter was Justice of the Peace, Precinct 1, Place 1, Ellis County and unlawfully issued two warrants under which plaintiff was arrested and imprisoned in the county jail of Dallas County, for a period of approximately five hours and, while so imprisoned, suffered a minor heart attack. The defendant answered and set up the defense of judicial exemption. Defendant also filed a motion for summary judgment which plaintiff controverted. The court granted the motion for summary judgment and Tedford has appealed.

"It is undisputed that appellant, Roy E. Tedford, was arrested by a Texas highway patrolman in Ellis County on December 19, 1961, and given a ticket which specified a charge of speeding; that appellant signed the ticket, stating he would appear before J. E. McWhorter, Justice of the Peace of Precinct 1, Place 1, in Ellis County on or before December 30, 1961. After his arrest by the highway patrolman, and his signature on the ticket promising to appear, appellant was released. Thereafter a case was entered on the docket of said Justice Court naming the appellant as the defendant on a charge of speeding. On December 26, 1961, appellee J. E. McWhorter wrote a letter to appellant reminding him of his obligation to appear within ten days after receipt of the ticket.

"There is a dispute as to whether appellant did so appear on December 28, and it is further disputed as to whether a complaint had at that time been filed against appellant. On January 3, 1962, appellee, Justice of the Peace, wrote another letter to Tedford and when no word was received in response to this second letter warrants for appellant's arrest were issued by appellee and pursuant thereto appellant was on February 15, 1962, arrested and placed in the Dallas County jail where he was confined for a period of five hours and suffered a minor heart attack. On February 16, 1962, appellant Tedford went to the courtroom of said Justice of the Peace in pursuance to instanter bonds made after his arrest and asked permission to inspect any complaints against him. He was shown no complaint and there is a conflict in the evidence as to whether a complaint of any kind existed or had been filed against him at that time. Subsequently, on March 15, 1962, appellant was tried and convicted in said Justice Court on the charge of speeding. Appellant urges one point in which it is contended that the court erred in finding that no genuine issue as to any material fact existed.

"In order for a detention to constitute false imprisonment the restraint must be unlawfully imposed. 22 American Jurisprudence 399. Appellant urges that the only lawful authority of a justice of Peace to issue a warrant of arrest is set out in Article 884, et seq. Tex.C.C.P., and that in the absence of a complaint duly filed in the Justice Court there is no jurisdiction of the case, and that the issuance of a warrant of arrest is unlawful. The parties agree that for a justice of Peace to have authority to issue a warrant of arrest the court must have jurisdiction (1) over the subject matter, and (2) over the person of the defendant. The parties also agree that in the instant case the Justice Court had jurisdiction over the subject matter.[100] The issue in controversy is whether the Justice Court had such jurisdiction, actually or colorably, over the person of Tedford at the time of the issuance of the warrants for his arrest that appellee McWhorter, as a judicial officer, was protected from liability. We are of the opinion that the record conclusively shows the existence of facts at the time of the issuance of the warrants of arrest which constituted colorable jurisdiction over the person of appellant sufficient to protect Justice of the Peace McWhorter from liability, if he acted in good faith.[101]

"The general rule is that a judicial officer is not liable for a false arrest arising out of his official action amounting to an excessive or erroneous exercise of jurisdiction where there is no clear abuse of all jurisdiction. In 35 C.J.S. False Imprisonment Sec. 44a, p. 706, it is stated:

'In cases over which the judicial officer has general jurisdiction, complaints, affidavits, or other preliminary proceedings have been held sufficient to protect him in acting thereunder where on a reasonable construction thereof the charge of an offense justifying arrest can be gathered, or where there is presented even in a slight degree a question on which the judicial mind is called to act in determining whether a crime has been committed by the person charged.

'The protection extends to an erroneous procedure, and errors of judgment resulting in improper detention after arrest, and to a second arrest on proof of the insufficiency of bail offered after the first arrest.'

"The case of Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A.N.S., 164, was a suit against a Justice of the Peace for false imprisonment. The Justice of Peace had issued a warrant for the arrest of an accused on an affidavit which was wholly insufficient to charge any criminal offense. The affidavit, however, was clearly an attempt to charge a threatened criminal trespass on the affiant's land, and stated facts as elements of such purported offense. It was held by the Supreme Court of Alabama that a colorable case was presented which fairly invoked the justice's judgment as to the sufficiency of the complaint; that under such circumstances the issuance of the warrant of arrest was based upon a judicial act involving the inquiry of the Justice of Peace and his affirmative conclusion, as to his power and authority to do so, for which it was held he was not liable if he acted in good faith. At page 865 of the opinion of 57 So. there is set out the following quotation from Craig v. Burnett, 32 Ala. 728.

'If it appeared that the fact, upon which the jurisdiction of the council over the matter of the imprisonment depended was judicially considered and adjudged by the council, then the defendants would not be liable for their mere error of judgment. Every judicial tribunal, invested with authority to be exercised in a certain contingency, has authority to inquire and ascertain whether the contingency has occurred. Where jurisdiction depends upon the existence of a preliminary fact, there is authority to decide whether that fact exists. A court is entitled to as full protection against an error of judgment in reference to the existence of the jurisdictional fact as in reference to the merits of the suit.'

"It is noted that in each of the above cited cases there was a lack of general jurisdiction over the subject matter. It was held that preliminary facts existed in each of the cases which protected the Justice of Peace in one instance and the City Council in the other in the erroneous determination that jurisdiction did exist over the subject matter. The reasoning in each of the cases was that a court is entitled to protection against an error of judgment in reference to the existence of such jurisdiction if there is colorable jurisdiction and the determination that there was actual jurisdiction is made in good faith. In Broom v. Douglass, supra, where as stated the erroneous determination involved general jurisdiction over the subject matter, it was indicated that in such a case 'colorable cause' or 'colorable invocation of jurisdiction', meant that a complaint or affidavit against the accused had been made in writing under oath, stating some fact or facts which purported to constitute a criminal offense, thereby calling upon the Judge to pass upon the sufficiency of the affidavit or complaint to illicit the process issued.

"In the instant case a slightly different problem is presented. Here it is undisputed that the Justice Court had general jurisdiction over the subject matter. The controversy involves jurisdiction of the person. There can be no question but that the court did not have actual jurisdiction over the person of the accused at the time of the issuance of the warrants sufficient to support a conviction unless complaint had been filed. That fact admittedly is in dispute, and the summary judgment was, therefore, not justified unless 'other preliminary proceedings' constituted 'colorable cause' sufficient to protect the Justice of the Peace in acting thereunder and issuing the warrant of arrest. Obviously, 'colorable invocation of jurisdiction' in a case involving jurisdiction over the person could not be the same as in cases involving jurisdiction over the subject matter. If complaints were filed with appellee Justice of the Peace before the issuance of the warrants of arrest charging appellant with the offense of speeding, and of failing to appear, charges over which the court had general jurisdiction, then admittedly there was both general jurisdiction over the subject matter and actual jurisdiction over the person accused, and the question of 'colorable invocation of jurisdiction' is not involved. This, however, is not the case before us. We must assume for the purpose of this appeal that no complaint was filed before the issuance of the warrants of arrest, and that appellee was therefore at least guilty of an error in judgment in issuing such warrants. But we see no reason why a Justice of the Peace is not protected against an error in judgment, made in good faith, in reference to the existence of jurisdiction over the person where there have been preliminary proceedings which 'colorably' invoked his jurisdiction.

"Under the provisions of Article 6701d, Sections 148, 149, Tex.Civ. St., and Article 792 of the Texas Penal Code, it is the duty of a peace officer who apprehends and arrests a person for the offense of speeding to give him a duplicate ticket or summons to appear in court to answer the charge, and to thereupon release the person arrested, if he gives his written promise to appear. The violation of such a promise to appear in court is made a misdemeanor offense regardless of the disposition of the charge upon which the arrest was made.

'The word 'accusation' as used in this Code means a charge made in a lawful manner against any person that he has been guilty of some offense which subjects him to prosecution in the name of the State. One is said to be 'accused' of an offense from the time that any 'criminal action' shall have been commenced against him.

'A legal arrest with or without warrant; a complaint to a magistrate, or an indictment are examples of accusation.'

'A 'criminal action' means the whole or any part of the procedure which the law provides for bringing offenders to justice; and the terms 'prosecution' and 'accusation' are used in the same sense.'

"Unquestionably a criminal action or proceeding was commenced against appellant when he was apprehended by the highway patrolman and signed the ticket agreeing to appear in the Justice Court on a charge of speeding. This original apprehension of appellant by the patrolman was a lawful arrest even though there was no warrant. In our opinion this arrest of appellant, the ticket or summons given to him by the highway patrolman to appear before the Justice Court on a charge of speeding and his written promise to appear constitute 'other preliminary proceedings' and show 'colorable cause' or 'invocation of jurisdiction' which protect appellee in his determination to issue the warrants of arrest, if his determination was made in good faith.

"We now come to a consideration of the question of appellee's good faith. Appellee, in his motion for summary judgment, stated under oath that in executing such warrants of arrest he acted in good faith in his official capacity as Justice of the Peace. We agree with the trial court that a judicial question was presented to appellee concerning his authority to issue the warrants of arrest. Even so, he was not entitled to judicial immunity for his erroneous decision unless he was acting in good faith. Appellee stated under oath that he was so acting. Since, however, he is an interested witness his sworn statement that he was acting in good faith, though undisputed, is not conclusive. There was an issue of fact, not only on the question of whether a complaint had been filed at the time appellee issued the warrants of arrest, but also, on the question of whether appellee acted in good faith in issuing the warrants if it should be found that no complaints were then filed.

"Appellee urges in his motion for rehearing that we erred in holding that appellee's liability is contingent upon the question of whether he was acting in good faith in issuing the warrants of arrest, and that appellee had the burden of showing his good faith; erred in holding that a jury question exists in this cause and erred in holding that there was an issue of fact as to appellee's good faith; that we erred in not holding that appellee, a judicial officer, acted in good faith in issuing the warrants of arrest, and that we erred in reversing and remanding and in not affirming the judgment.

"Upon reconsideration we have decided that we did err in reversing the judgment and in remanding the cause, and have concluded that the judgment should be affirmed. There were 'other preliminary proceedings' which showed 'colorable cause' or 'invocation of jurisdiction' over the person of appellant, and a judicial question was presented concerning appellee's authority to issue the warrants of arrest. Since there was colorable jurisdiction over the person of the appellant and a judicial determination was involved appellee cannot be held liable even though he improperly determined the question of his jurisdiction and this is true even if it could be determined that he did not act in good faith. We are now of the opinion that we erred in holding that the burden was on appellant to show his good faith. In Rains v. Simpson, 50 Tex. 495, 499 it was stated:

'From the very necessity of the case, this immunity from private liability extends not only to negligent, but willful and malicious judicial acts. * * *

"That able jurist, Judge Cooley, in a valuable contribution on this subject in 3 Southern Law Review, (N.S.,) 547, says: 'But our own view is, that the doctrine that a public officer, acting within the limits of his jurisdiction in the discharge of a discretionary duty, can be held liable upon an assumption that he has acted willfully or maliciously, is an exceedingly unsatisfactory and dangerous one; and that those decisions are safest and most consonant to public policy which deny it altogether. Motives are not always readily justified to the public, even in cases where they have been purest; and the safe rule for the public is that which protects its officers in acting fearlessly, so long as they keep within the limits of their legal discretion.'

"In Turner v. Pruitt,[102] Judge Calvert, speaking for our Supreme Court, stated as follows:

'The same reasons underlying immunity of district judges from tort liability for acts performed or not performed in judicial proceedings require a conclusion that justices of the peace should enjoy like immunity when acting in the course of judicial proceedings of which they have jurisdiction.'

"In affirming the trial court in the cited case the Supreme Court approved the dissenting opinion of Associate Justice Wilson in the Court of Civil Appeals.[103] Justice Wilson stated in his dissent as follows:

'In Mabry v. Little, Justice Wheeler held that even if the unlearned justice of the peace had no jurisdiction, if the plaintiff submitted to his jurisdiction he waived the trespass and an action for damages would not lie. In Anderson v. Roberts, the rule is stated that even if the justice improperly determines he has jurisdiction, he cannot be held liable for his acts for 'When the state confers judicial powers upon an individual it confers him with full immunity from private suits.' The general rule is similarly stated in 51 C.J.S. Justices of the Peace Sec. 19, p. 36, and 173 A.L.R. 802. The jurisdictional test has been reiterated by such venerable authorities as Coke, Bacon, Blackstone, Kent and the ancient Dalton's 'Country Justice.'[104]

"The ticket or summons given to appellant by the highway patrolman to appear before the Justice Court on a speeding charge and his written promise to appear constituted 'other preliminary proceedings' and were a colorable invocation of jurisdiction over the person of appellant. This colorable jurisdiction protected appellee in his decision to issue the warrants for appellant's arrest and he is immune from personal liability in a civil action even though his acts may have been in excess of his jurisdiction.

"The judgment is affirmed." Tedford v. McWhorter 373 S.W.2d 832 (Tex.Civ.App.-Eastland 1964)

Issues: Affirmative defense, burden of proof, evidence, subject matter jurisdiction.

"The instant case arose from two previous litigations. The first litigation involved appellant and the City of Bryan, Texas. Appellant was cited for violating a city ordinance regarding the appearance and suitability of real property. After a jury found appellant guilty, the trial court imposed a civil penalty of $500 and ordered appellant to have the subject property cleaned. A subsequent agreement between appellant and the city resulted in the removal of several goats[105] from the property as well. The judge presiding over this cause of action was appellee, Judge J.D. Langley. Appellant was represented in this action by appellee, D. Brooks Cofer, Jr. and his law firm, D. Cofer, Jr., Inc., (now Cofer & Cofer, Inc.).

"The second litigation involved the partition and sale of a certain piece of real property in Brazos County, Texas. On June 19, 1985, appellant filed for partition alleging joint ownership in the real property including its improvements. The petition sought the appointment of a receiver to sell the property and divide the proceeds among the owners. D. Brooks Cofer, Jr. and the law firm of Cofer & Cofer, Inc. represented appellant in this litigation as well. On March 25, 1987, appellee, D. Michael Holt (Holt), was appointed substitute receiver by appellee, Judge W.T. (Tom) McDonald, Jr., then presiding Judge of the 85th District Court of Brazos County. Holt was to assist in the sale of the house. Holt filed his "Receiver's Report of Sale" on April 27, 1987. According to the report, the property was sold to a third party for $18,500. The next day, Judge McDonald signed an order approving and confirming the sale and ordered the funds disbursed.

"On August 10, 1992, appellant filed the instant suit against D. Brooks Cofer, Jr., Cofer & Cofer, Inc., and Lawyers Title Company. 2 Appellant alleged legal malpractice and DTPA violations in connection with the sale of the property in Brazos County and the litigation resulting in penalties for violations of a city ordinance. On November 20, 1992, appellant filed her first amended petition, joining the remaining defendants/appellees.

". . . Judges Langley and McDonald filed their motion for summary judgment. . . the judges raised the affirmative defense of judicial immunity. . . [T]he trial court granted [the] motions for summary judgment."

Rea begins its judicial immunity analysis by noting that judicial immunity is an affirmative defense. All of its elements must be proven by the defendant judge.

"[W]e need review only the defense of judicial immunity. Appellant's allegations . . . arise from orders signed by Judge Langley on November 4, 2022 and by Judge McDonald . . . in unrelated lawsuits. When a defendant moves for summary judgment based on an affirmative defense, the defendant bears the burden of proving conclusively all the elements of the affirmative defense as a matter of law such that there is no genuine issue of material fact.[106] "

"A judge enjoys absolute judicial immunity from liability for acts[107] performed or not performed in the course of judicial proceedings over which he has jurisdiction.[108] "

The court then looks at the acts which are alleged by the plaintiff to see whether the acts were done, or not done, within jurisdiction. The plaintiffs claim was based on an erroneous premise that the case exceeded the county court at law's jurisdictional limitations. The court of appeal holds that the court had jurisdiction.

"Appellant's suit seeks to impose civil liability arising out of appellees' performance of duties for which they enjoy absolute immunity. Judge Langley's affidavit established that his only contact with appellant was in his official capacity as the presiding judge[109] of the County Court at Law Number 2, of Brazos County, Texas, in a suit[110] between appellant and the City of Bryan. Judge Langley's affidavit further contended that any action of which appellant complains was taken in his official capacity as judge of the county court.[111] Appellant challenged Judge Langley's assertion of immunity by contending that he acted beyond the scope of his jurisdiction because the suit before him had an amount in controversy of $10,000. This argument fails, however, because the Brazos County Court at Law has concurrent jurisdiction with the district court in civil cases in which the amount in controversy is between $500 and $50,000. TEX.GOV'T CODE § 25.0232(a)(2)(A).[112]"

"Likewise, Judge McDonald's affidavit established that his only contact with appellant came in his official capacity as judge of the 85th District Court of Brazos County, Texas.[113] Specifically, in a suit to partition real property. State district courts are courts of general jurisdiction.[114] This jurisdiction extends to suits to partition real estate.[115] "

The court finds the acts within the judge's jurisdiction. Well, it almost does. It actually just finds jurisdiction without mentioning the acts. We are required to read between the lines that the acts were judicial acts within these proceedings. That is easy to do in this case, but the court should specifically address the acts as well as the court's jurisdiction, and determine if the specific acts are within that jurisdiction. Another sentence might be sufficient to complete the analysis.

"Thus both judges established subject-matter jurisdiction,[116] and conclusively established that they were entitled to absolute judicial immunity, and summary judgment was properly granted on that ground." Rea v. Cofer 879 S.W.2d 224 (Tex.App.-Dallas 1994)

In McDuffie, a parent sued his former wife, the lawyers for his former wife, and the judge who presided over a prior suit affecting child custody and support because they "forced him into the emotional distress of a trial." The judge plead the affirmative defense of judicial immunity. The trial and appellate courts were not impressed with the plaintiff's case. In rejecting it, the court probably arrived at the correct result, but without a proper analysis.

The first question is what action of the judge created the basis for the plaintiff's claim. A court must know what the act is in order to determine whether the act is an act for which there is immunity. Whatever the act of the judge was, it is likely that it is an act for which the judge is clearly immune. The court's failing is in not identifying an act. Without an act to analyze, it is impossible to determine whether there is immunity. For example, if the act was setting the prior case for trial, the judge is immune. If it was failing to dismiss, the judge is immune. If the act is identified, the conclusion of immunity may be easily reached. With no act identified, there is immunity for the act of ______. That's right. We don't know what goes in the blank. That is not an adequate analysis. This easy case exemplifies the failure of a court to go through the proper analysis because the court thinks it knows the answer.

It is possible that the plaintiff did not identify any specific action of the judge. If that is the case, the proper procedure is for the judge to file special exceptions. The plaintiff may then amend the complaint to specify the action which is the basis of the claim. Summary judgment is not the proper procedure, even if the complaint does not state a proper claim.[117]

In McDuffie, it is hard to imagine that the justice performed any act which would not be within the protection of judicial immunity. But, this easy case makes bad law if it suggests that an act need not be identified and a summary judgment may substitute for special exceptions. McDuffie cited Spencer, but failed to perform Spencer's careful analysis of the specificity of the pleadings and special exceptions. We turn to the courts opinion in McDuffie.

"Under the Texas Constitution, state district courts are courts of general jurisdiction.[118] A judge has immunity when acting in the course of a judicial proceeding over which he has jurisdiction.[119] The doctrine of absolute judicial immunity encompasses all judicial acts unless such actions clearly fall outside the judge's subject-matter jurisdiction. This is so even where the judge is accused of acting corruptly[120] [121] or maliciously.[122] [123] [124]

"The Texas Family Code provides that an order setting the terms and conditions for conservatorship of, support of, or access to a child may be modified by filing a motion in the court having continuing, exclusive jurisdiction of the suit affecting the parent-child relationship.[125] The Family Code also provides that any party affected by the prior decree may file such a motion. Id. Furthermore, in determining the jurisdiction of the trial court, allegations made in good faith in the petition are determinative of the cause of action.[126]

"Here, the record shows that Carol filed a motion to modify the divorce decree in the court of continuing jurisdiction. By her motion, Carol sought to modify and clarify the medical coverage and visitation provisions of her's and Ronald's prior divorce decree. Carol sought an order requiring Ronald to pick up the children or, alternatively, an order requiring him to give her notice if he had no intention of exercising visitation or if visitation was to be altered. Carol alleged that disputes had arisen between her and Ronald regarding interpretation of visitation and medical insurance provisions. Under these pleadings, Carol had standing to ask for a modification of the divorce decree, and the district court had subject-matter jurisdiction over any modification of its prior order involving visitation. Thus, the trial court had subject-matter jurisdiction over the motion to modify,[127] and O'Donnell acted[128] within his jurisdictional authority. Consequently, O'Donnell established the defense of judicial immunity as a matter of law and was entitled to summary judgment upon that ground." McDuffie v. Blassingame, 833 S.W.2d 329 (Tex.App. Amarillo 1994)

Issues: Is the jurisdictional requirement for immunity satisfied if a court has subject matter jurisdiction but the judge does not have authority or "jurisdiction" to preside over the court at the time of the act, and the act is therefore void? Is a judge who conspires with others to engage in actionable conduct immune?

A clearly erroneous analysis of judicial immunity is contained in Houston's First Court of Appeals Bradt opinion. The errors by the court provide an excellent teaching tool because they show how not to analyze judicial immunity.

The court takes its shot, but misses the target. The reason it missed is simple. It didn't see the target. It did not comprehend the basis for the claim or the basic judicial immunity law.

First, we review the basic elements for judicial immunity. They are the "judicial" nature of the act, and "jurisdiction."

The "judicial nature of the act" is not involved in the error in Bradt. Assume that the act was judicial, and this element of the affirmative defense of judicial immunity was met by Judge West.

The jurisdiction element is the issue. Think of the jurisdiction element as a three legged stool upon which the judge is standing when the judge engages in the "judicial act" which gives rise to the claim. All three legs of the jurisdictional stool must be present. All must be sturdy. If any leg fails, neither the judge, nor the judge's judicial immunity defense, can stand. We review the three legs one leg at a time.

1. The court must have subject matter jurisdiction. This element or "leg" is about the power of the court as an institution, not the power of the individual who presides as judge. Subject matter jurisdiction allows the act to be done by the court in that kind of case.

2. The court must have jurisdiction over the particular case or matter. Generally this means that a case must be pending. That generally requires that a pleading was filed to activate the court's jurisdiction. This element or "leg" is also about the power of the court as an institution, not the power of the individual who presides as judge.

3. The judge must have authority to act as the judge. The judge must have "jurisdiction" over that court in that particular case. This element is sometimes mentioned in passing. It is generally not in doubt. It is required. This element may be loosely[129] stated as, "the judge must be a judge" and "the judge must be the judge of the particular court with power over the particular case." This is the issue raised in Bradt, but missed by the court. We examine it in detail.

The issue might arise if the person purporting to be a judge is a fraud. Yes, this is rare, but it illustrates the concept. If a petty criminal, waiting in an urban courthouse corridor for trial of her case:

(3) takes the bench, and announces: "I am Judge Con, a visiting judge from Fanciful County. Texas. I have been appointed to preside today. Call the next case."

(4) while purporting to preside over the "next case" holds the assistant district attorney in contempt, orders him jailed, and the assistant district attorney is jailed.

Does Con have judicial immunity for actions taken as "judge" of that case? Should Con have immunity? Is immunity for Con good public policy? The issue is the authority or "jurisdiction" of the individual to preside. This issue is not about the court's jurisdiction. It is about the authority or "jurisdiction" of a particular person to exercise the court's jurisdiction over the case.

A slightly more likely case would be a judge who fails to meet the requirements for a judge, by lacking basic requirements of office such as age, or years of law practice; failing to file an oath or agreement not to privately practice law; or failing to pay law license fees or dues. The issue is whether such a failure disqualifies the person from judicial immunity if the person presides despite the lack of compliance with a requirement for serving as judge.

A more likely case is a judge who really is a judge, but does not have authority to preside in the particular court over the particular case. For example, in a jurisdiction with two levels of courts, a judge of the higher level might be eligible to serve as visiting judge in the lower level, but the reverse may not be legal. If a lower level judge is appointed to preside in the higher level court for which the judge is ineligible, is there immunity?

The situations described above are not common in judicial immunity litigation, so we merely acknowledge that the issue might arise and need resolution. The common circumstance is that a court will mention that the defendant is a judge with authority to preside over the court. Since judicial immunity is an affirmative defense, the defendant judge has the burden to plead and prove the authority to preside over the case in the court at the time of each act which give rise to the suit, and the defense should fail if the judge neglects to do so, or cannot do so. With that background, we turn to the examination of Bradt.

The Bradt situation arises with some frequency in Texas. It gives rise to serious questions of whether judicial immunity protects a judge is created when a judge purports to preside despite lacking authority or "jurisdiction" over a case because the judge is (1) the subject of an unresolved motion to recuse, (2) the subject of a valid objection to an assigned judge, or (3) constitutionally disqualified from presiding. [See the continuing legal education courses on recusation, objection, disqualification, and appointment at YouKnowItAll.com]

Mr. Bradt sued a judge for an act taken while the judge was the subject of an unresolved motion to recuse. The court had subject matter jurisdiction. A case had activated the court's jurisdiction. The "act" arose within that case.[130] The two legs of the stool which relate to the power of the court were satisfied.

The Bradt issue involved the third leg. Did Judge West have authority to preside at the time he acted? Was he eligible to wield the court's power at the time he acted? That was the one and only jurisdictional leg challenged by Mr. Bradt. The court of appeals failed to recognize the issue. It failed to examine this leg of the jurisdictional stool. Instead it examined the first leg. Just as a surgeon who amputates one leg from a two legged person must amputate the correct leg, a court must examine the leg of the jurisdictional stool that is challenged. When only one leg is challenged, a court which examines a different leg has engaged in a meaningless exercise.

We will review Bradt's claim, the court of appeal's analysis, and present the author's analysis.

Bradt's claim against Judge West was based on Judge West's act during a time when Judge West was barred from acting in the case. Some history is required. Bradt is an attorney who filed a suit on behalf of his clients. At one time Judge West had been the judge presiding over the case. On June 16, 1992, after judgment and appeal, but while post judgment matters were pending, a motion to recuse Judge West was filed. Judge West refused to recuse, but referred the motion to recuse to the presiding judge of the judicial administrative region as required by law.[131] The presiding judge of the administrative region appointed Judge Casseb to hear the motion. Judge Casseb denied the motion on jurisdictional grounds.[132] Later, the First Court of Appeals granted mandamous[133] and ordered:

"(1) Judge West shall make no further orders and shall take no further action in the case until the motion to recuse is ruled on, "except for good cause stated in the order in which further action is taken," as provided in TEX.R.CIV.P. 18a(d).

"(2) Judge Casseb's September 28, 2022 order denying relator's motion to recuse for lack of jurisdiction is vacated and set aside. Judge Casseb or another judge assigned by Judge Stovall shall hold a hearing on relator's motion to recuse, and rule on it."

After the motion to recuse was filed, and before the court of appeals granted mandamous, Judge West signed a void purported order on August 18, 1992. This was the "act" which gave rise to this suit.

The facts give rise to a serious judicial immunity issue. It was the issue that Mr. Bradt raised. It is the issue that the court of appeals missed. The general issue is whether a judge who purports to preside over a case over which he has no authority to preside has judicial immunity for the void acts taken without authority. The specific issue is whether a Texas trial judge who is the subject of a procedurally proper motion to recuse, and barred from taking any action in the proceeding except actions allowed by Rule 18a(d),[134] but purports to preside by taking an action which is not allowed by Rule 18a(d), is protected by judicial immunity. While the question is clear, the answer is unknown. It was not addressed in Metzger or the later Bradt cases because the court of appeals failed to recognize the issue.

The court of appeals held that Judge West was protected by judicial immunity. Whether that conclusion is correct or not, the analysis of the court of appeals was incorrect. The court of appeals failed to recognize the three legs of the jurisdictional stool, those being the court having subject matter jurisdiction, the court's jurisdiction being activated by a pleading, and the judge having authority over that case in that court at the time of the act. In Bradt, the issue was not the authority, or "jurisdiction" of the court. It was the authority or "jurisdiction" of Judge West to preside over the case at the time of his action. Whether the court had subject matter jurisdiction was not the issue. Yet, that is the one and only leg of the jurisdictional stool the court examined. The court held that Judge West had jurisdiction and was immune solely because the court had subject-matter jurisdiction and the act was a judicial act. The court of appeals failed to address whether Judge West had "jurisdiction" to act for the court while his authority to act in the case was suspended[135] as a result of the pending and unresolved motion to recuse Judge West.

We turn to the jurisdictional leg that the court of appeals did analyze - the subject matter jurisdiction leg that was not an issue in the case.

". . . West was sued for his conduct after he refused to recuse himself in [lawsuit number two].... Specifically, the appellants complain of . . [136] the signing of a show cause order on August 18, 1992--when [West] was devoid of any jurisdiction to act . . . . We must determine whether West has absolute judicial immunity from being sued for the acts of which the appellants complain in their pleadings.

"The judges of Texas courts have absolute immunity for their judicial acts 'unless such acts fall clearly outside the judge's subject-matter jurisdiction.'[137] Spencer[138] v. City of Seagoville;[139][140][141] Thus, in determining whether absolute judicial immunity applies, we face a two-part inquiry: First, were the acts of which the appellants complain 'judicial' ones? Second, were those acts 'clearly outside' the judge's[142] jurisdiction? Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

Note that, before addressing the disputed issue of jurisdiction, the court of appeals discusses whether the nature of the act is a judicial one. In a case in which the act is a purported court order, how could it be otherwise? This element of judicial immunity does not warrant much discussion. A court order in a case is a "judicial act." Can that be doubted? The court's struggle to justify this obvious conclusion is strained because it is so clearly a judicial act that the strained analysis is excessive. We quote the court in the footnote to this sentence, while suggesting that the court's analysis carries little precedential or educational value as it struggles to articulate a complicated resolution to a simple issue that isn't an issue at all.[143]

"Was West's act 'clearly outside' his[144] jurisdiction?" Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

The court of appeals describes Bradt's argument against Judge West's judicial immunity defense. The statement of the argument is clear. It is about the third leg of the jurisdictional stool, i.e. whether the judge has the authority to preside over the court at the time of the act.

"The appellants argue that when West signed the show-cause order on August 18, 1992, 'West was without any jurisdiction to act....' According to the appellants, West lacked jurisdiction because, on June 16, 1992, well before he signed the show-cause order, he had been presented with a timely motion to recuse in lawsuit number two, and so should have either recused himself or asked the presiding judge of the administrative judicial district to assign a judge to hear the motion. This argument misses the point."

The court says that Mr. Bradt missed the point. That is erroneous. What does the court of appeals think is the point? The court of appeals analyses the jurisdictional stool as a one legged stool with the court's subject matter jurisdiction being the only requirement for judicial immunity. The court of appeals missed the point.

"The term 'jurisdiction' has a connotation in judicial immunity analyses that is entirely different from its usual meaning.[145] 'Where a court has some subject-matter jurisdiction, there is sufficient jurisdiction for immunity purposes.' Malina, 994 F.2d at 1125; Adams, 764 F.2d at 298; accord Harris, 780 F.2d at 916 (holding that a judge acts in the 'clear absence of all jurisdiction' only if the judge 'completely lacks subject matter jurisdiction'[146]). Furthermore, 'the term 'jurisdiction' is to be broadly construed to effectuate the policies of guaranteeing a disinterested and independent judicial decision-making process.' Holloway;[147] accord Stump v. Sparkman,[148][149]

"In determining whether an act was clearly outside a judge's jurisdiction for judicial immunity purposes, the focus is not on whether the judge's specific act was proper or improper, but on whether the judge had the jurisdiction necessary to perform an act of that kind in the case. See Mireles v. Waco,[150] 502 U.S. 9, 13, 112 S.Ct. 286, 289, 116 L.Ed.2d 9 (1991) (where judge was alleged to have authorized and ratified police officers' use of excessive force in bringing recalcitrant attorney to judge's courtroom, and thus to have acted in excess of his authority, his alleged actions were still not committed in the absence of jurisdiction where he had jurisdiction to secure attorney's presence before him); Malina, 994 F.2d at 1124 (because judge had power to cite for contempt and to sentence, where judge cited motorist for contempt and sentenced him to jail, these acts were within his jurisdiction, even though judge had acted improperly in stopping the motorist himself, privately using an officer to unofficially 'summon' the motorist to court, and charging the motorist himself);[151] Sindram v. Suda, 986 F.2d 1459, 1460 (D.C.Cir.1993) (judge's prohibiting plaintiff from filing any new civil actions pro se before paying outstanding sanctions was 'well within' judge's 'jurisdiction' as term is used for judicial immunity test);[152] Holloway, 765 F.2d at 523 (where judge was alleged to have committed many illegal acts from the bench, but there was 'no question that he was generally empowered to conduct proceedings of the sort he [was] conduct[ing]' at the time he allegedly committed the illegal acts, the acts were within his jurisdiction for judicial immunity purposes). Even the commission of 'grave procedural errors' does not deprive a judge of jurisdiction as the term is meant in absolute judicial immunity analyses.[153] Stump, 435 U.S. at 359, 98 S.Ct. at 1106; Malina, 994 F.2d at 1125.[154]

"Thus, the question is not whether West acted improperly when he signed the specific order complained of, but whether he had the jurisdiction necessary to sign an order of that kind, i.e., a show-cause order, in the case. He clearly did.[155] Signing a show-cause order--even a void one--in a case before him[156] is an act within a district judge's 'jurisdiction,' as that term is used for judicial immunity purposes.[157] Therefore, regardless of the motion to recuse, West acted within his 'jurisdiction,' as that term is used in judicial immunity analyses, when he signed the show-cause order. . . .

"Judge West has absolute judicial immunity from being sued for the acts of which the appellants complain."

"We . . . affirm the summary judgment granted to Judge West." Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

An Alternate judicial immunity analysis when a judge's authority is suspended, terminated, or prevented by recusation, objection, disqualification or other factor.

The following analysis is suggested by the author as appropriate in a Texas judicial immunity case in which a judge's authority to preside is suspended, terminated, or prevented by any of a number of factors. We review several different circumstances, then consider the consequences of those situations.

Recusation. One situation is the one raised by Bradt, with a judge's authority temporarily suspended until a motion to recuse is decided. The judge's authority may be reinstated by denial of the motion to recuse by the judge appointed to hear the motion, or it may be permanently terminated by granting the motion. For this discussion, we assume that the rule 18a(d)[158] exception does not apply. If the judge purports to preside and "act" while the judge's authority is suspended by this unresolved motion to recuse, the judge's act is void because the judge did not have authority to act. In this context, it has been said that the judge lacks "jurisdiction." If a judge acts after a motion to recuse the judge has been granted and the judge's authority to act permanently terminated, the situation is similar. The judge lacks "authority" or "jurisdiction" over the case. [For details on recusation, see YouKnowItAll.com's Texas continuing legal education course on Texas judicial recusation.]

Objection. Objection refers to the objection under Texas Government Code §74.053(b) or §74.053(d) to a judge appointed under Chapter 74. A valid objection terminates the judge's authority or "jurisdiction" over the case. Any action by the judge is void. There is no discretion. When a valid objection is filed, the authority ends. [For details on recusation, see YouKnowItAll.com's continuing legal education course on Objection to the Texas Appointed Judges."]

Disqualification. Disqualification applies to a judge who is constitutionally disqualified from presiding over a case. The judge has no authority or "jurisdiction" over the case. Any action by the judge is void. No action by the parties is required. [For details on disqualification, see YouKnowItAll.com's continuing legal education course on disqualification of Texas Judges.]

End of Plenary Power. This concept applies to various situations. One occurs when a judge is appointed to preside over a family law issue involving a child. This might involve custody or support. For example, two years after a divorce, a judge may be appointed to preside over a request for a change in visitation. When that matter is resolved and plenary power as to that matter ends, the authority of the appointed judge ends. Yet, the continuing jurisdiction of the court may continue for years. If, three years, or three minutes, after the termination of plenary power as to the original matter, a new request for another change in visitation is filed, that is a new matter over which the previously appointed judge has no authority. If that appointed judge purports to preside under the original appointment, any order is void. The judge has no "authority" or "jurisdiction" over this new matter.[159]

A similar situation may exist in probate proceedings. A judge may be appointed to hear a will contest. When that contest is finally resolved, the authority granted by that order expires. If a more recent will is offered for probate after plenary power over the original matter ends, and the judge appointed to hear the prior matter purports to preside pursuant to the original appointment, the result may be the same void order and lack of "jurisdiction" by the judge over the court as in the family law context. Texas probate jurisdiction creates an abundance of situations in which jurisdiction can be a problem. In some counties, a will contest may be transferred from the constitutional county court to a district court. If a separate estate administration matter is originally filed in the district court with the caption[160] of the will contest case and the district judge purports to preside over that matter, the matter is outside of jurisdiction because the district court lacks jurisdiction over the matter.[161] If a purported transfer purports to move a probate case from a constitutional county court to a district court in a county in which there are statutory county courts at law with probate jurisdiction (but not necessarily "statutory probate courts") the purported transfer is void. If a matter is filed in a probate court but is not within probate court jurisdiction, the proceedings are void. If a gas pipeline suit is filed in a rural district court, but a party dies in Houston, and a Harris County Probate Court transfers the case to itself, but the estate then settles its part of the case, what happens? [If these situations seem bizarre or beyond comprehension, you may get a sample of probate jurisdiction problems in the continuing education course on recent Texas probate, estate, and trust cases on jurisdiction at YouKnowItAll.com. Some of the issues can affect any type of Texas litigation, including gas pipeline disputes, not just litigation that is categorized as probate litigation.]

Appointed Judges. Appointments of judges create a range of issues. Most remain unexplored by the appellate courts. A judge may be appointed to a particular court to preside over all cases for a period of time. A judge may be appointed to a particular court to preside over a particular case. What is the result if the court does not exist, but the judge purports to preside in an existing court pursuant to the appointment to the nonexistent court? For example:

. A judge is appointed to Fanciful County Court at Law #8 to preside over Lost v Found (which is actually pending in Court at Law #4). If there is no such court, but the judge purports to preside over Fanciful County Court at Law #8 (the nonexistent court) in the case of Lost v. Found, what is the result?

. What is the result if the appointment was to Fanciful County Court at Law #4 (an actual court) to preside over the case of Lost v. Found but the judge purports to preside over Fanciful County Court at Law #8 (a nonexistent court) case of Lost v. Found (which is actually pending in Court at Law #4)?

. What is the result if the appointment was to Meaningful County Court at Law #4 to preside over the case of Lost v. Found and the judge purports to preside over Fanciful County Court at Law #4 case of Lost v. Found?

. What if the appointment is of Judge Barely Able, and Judge Very Able purports to preside?

. What if several judges named George Foreman exist and one is appointed, but another one purports to preside?

. What if the appointment of a judge to serve on December 1, 2022 is dated November 15, 2022 or February 30, 2001?

. What is the effect on the authority of the regular judge if an appointed judge is appointed to preside over a specific court on a specific date or over a specific case? Does the regular judge lose authority over the cases over which the appointed judge presides? In re Canales February 1, 2023 (Tex. 2001)

A wide range of clerical and substantive issues can arise. The author has seen some of these bizarre examples in Texas trial practice or in reported appellate cases. Some are purely hypothetical. Appointments are technical. The technicalities should be taken seriously. If the judge lacks authority, the proceeding may be void, and the judge may not have immunity. Consequences of these problems will depend on the technical legal effect that these various situations create. The Texas Supreme Court has acknowledged that the authority created by appointments is often unclear and subject to multiple interpretations.

Consequences. What is the consequence of a judge presiding without jurisdiction or authority over the case? One of the three required legs of the jurisdictional stool is missing. The jurisdiction element of the affirmative defense of judicial immunity is lacking. There is no immunity. Or is there? The issue has not been addressed by Texas courts outside of the Bradt case. Bradt failed to recognize that authority or "jurisdiction" of the judge to preside over the case is required for judicial immunity. A judge who lacks authority or "jurisdiction" to preside and act for the court is not within the normal boundaries of judicial immunity. Stretching judicial immunity to cover such a defendant requires more than mere stretching. It will require either a new analysis of either judicial immunity concepts to extend judicial immunity to judges who do not have authority or "jurisdiction" over a case or court, or a new analysis of the status of a judge who lack authority as a result of disqualification, objection, recusation, or termination of plenary power. The courts will have to explain that they did not mean what they said in one of those two areas. Or, they can either extend judicial immunity through incorrect analysis that ignores the real issue, as was done in Bradt, or with no analysis at all, with the hope that no one will notice. Texas Judges like judicial immunity. No theory supporting their own immunity should be ruled out.

The Bradt court mentioned a claim against Judge West for conspiring with others to maliciously prosecute. The court rejected the claim with citation to one Federal case, but without analysis. The court does not explain why the claim is rejected. It does not justify its conclusion, nor does it discuss the factual basis for Bradt's claim. The court's minimalist rejection on the merits is followed by rejection of the same claim on a procedural ground that the court expounds upon. The court concluded that Bradt waived the issue by not discussing the facts. On rehearing, the court acknowledges that Bradt cites legal authority on the issue, but again concludes that Bradt waived the issue by failing to discuss the facts. The court's waiver analysis is included in the footnote to this sentence.[162] The court's minimalist rejection of the conspiracy claim on the merits does not refer to any of the legal authority cited by Bradt. The court's entire analysis of the merits of the issue is the following:

"The appellants argue that West 'was [also] sued for his conduct .. [in] joining the conspiracy to maliciously prosecute Bradt....' This contention does not aid the appellants. 'The fact that it is alleged that the judge acted pursuant to a conspiracy ... is not sufficient to avoid absolute judicial immunity.' Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir.1991)." Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

The Bradt court stated the basic purpose of judicial immunity. The only remarkable aspect of the court's statement is that it conflicts with the court's holding. The court held that Judge West was immune when acting contrary to his only duty. An unresolved motion to recuse suspended his authority to act. He had no authority. He had no power. His only duty was to not act.

"Despite the unfairness to litigants that sometimes results, the existence of the doctrine of judicial immunity is in the best interests of justice.[163] It allows a judge, in exercising the authority vested in him, to be free to act according to his best judgment, unencumbered by anxiety about being sued for acts he performs in discharging his duties. Id. The public has a right to expect the unfettered execution of those duties; this doctrine helps the judge fulfill those expectations. Thus, absolute judicial immunity "should not be denied where the denial carries the potential of raising more than a frivolous concern in a judge's mind that to take proper action might expose him to personal liability."[164] "The fact that the issue before the judge is a controversial one is all the more reason that he should be able to act without fear of suit."[165] " Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

Would it have been bad if Judge West had refused to act out of fear of being sued? Why? His action was void. Would the public suffer if judges who are prohibited from presiding over a particular case do not preside? Is it better if they do not preside because of the law, rather than because of fear of lawsuit? Is it better if they do not preside because of fear of criminal prosecution rather than civil suit? Is Judicial Immunity in the public interest or in the judge's interest.

"A party that relies on an affirmative defense must specifically plead the defense, and, when the rules of civil procedure require, must verify the pleading by affidavit.[166] The properly pled affirmative defense, when supported by uncontroverted summary judgment evidence, may serve as a basis for summary judgment.[167] Even an unpled affirmative defense may serve as a basis for summary judgment when it is raised in the motion for summary judgment and the opposing party does not object to the lack of pleading either in a written response to the motion for summary judgment or before the rendition of judgment.[168]

"Whether the affirmative defense is pled or unpled, the defendant must conclusively establish all of the essential elements of the affirmative defense to be entitled to summary judgment. [169] If the defendant does so, the plaintiff, to avoid summary judgment, must then introduce evidence that raises a fact issue on some element of the defendant's affirmative defense.[170] " Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

"On appellate review of a summary judgment, we must take all evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in favor of the nonmovant.[171] We will not affirm a summary judgment on a ground that was not specifically presented in the motion for summary judgment.[172] Nor will we reverse a summary judgment on a ground that was not expressly presented to the trial court by a written motion, answer, or other response to the motion for summary judgment.[173] Further, we will not reverse a summary judgment on a ground that was expressly presented to the trial court by a written motion, answer, or other response to the motion for summary judgment, but that was subsequently abandoned by the nonmovant.[174] When the trial court's summary judgment order does not specify the ground or grounds on which summary judgment is granted, we will affirm the summary judgment if any of the grounds stated in the motion are meritorious.[175]" Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)

Issues: Judicial function. Function of county judge and district judges in employment, supervision, removal, control and payment of county auditor. Pleading and proof requirements to support summary judgment for immunity defense.

"Appellant, Ernest Guerrero, sued appellees, Refugio County, Refugio County Judge Charles Stone, 135th District Court Judge Marion M. Lewis, 267th District Court Judge Whayland K. Kilgore, and 24th District Court Judge Joseph P. Kelly because he was not reappointed County Auditor of Refugio County. Guerrero alleged age, national origin, and politically motivated discrimination. Retired Judge Henry Schuble, III was specially appointed to hear the case.

"All of the appellees filed motions for summary judgment. On July 29, 1995, Judge Schuble granted the motions filed by Judge Lewis, Judge Kilgore, and Judge Kelly. On August 12, 1995, Judge Schuble granted the motions filed by Judge Stone and Refugio County. Appellant challenges these summary judgments by eleven points of error. We reverse the trial court's summary judgments for Judge Lewis, Judge Kilgore, and Judge Kelly against Guerrero's 42 U.S.C. § 1983 claim for political discrimination and remand that cause of action to the trial court for further proceedings. We affirm the trial court's summary judgments for Judge Lewis, Judge Kilgore, and Judge Kelly against the remainder of Guerrero's causes of action. We affirm the trial court's summary judgments for Refugio County and Judge Stone.

"Guerrero was appointed County Auditor of Refugio County by a majority of the district judges in Refugio[176] A county auditor serves a two-year term.[177] Guerrero was appointed county auditor eleven times and served for twenty-two years. He was last appointed in 1991, and his term of office ended in 1993.

"Before 1993, the district judges did not seek other applicants, and Guerrero was reappointed based on his application for the position. In 1993, Judge Lewis received a letter from Judge Stone, dated July 15, 1993, suggesting that the district judges open the appointment process to other applicants because independent auditors had criticized Guerrero's auditing practices. The district judges subsequently notified Guerrero that public notice was being given to open the appointment process to all applicants, and he was asked to reapply. The district judges received seventeen applications. Guerrero was one of the seventeen applicants. Guerrero and seven others were selected for an interview. After the interviews, Guerrero received a letter from Judge Lewis, dated December 10, 1993, informing him that another person had been appointed county auditor.

"Appellant then filed a complaint with the Texas Commission on Human Rights, charging Refugio County with age discrimination in the appointment process. Appellant later amended the complaint to include discrimination because of national origin. Appellant is Mexican-American and was fifty-nine years old. The new appointee is not Hispanic and was thirty-eight years old.

"After receiving a right to sue letter from the Texas Commission On Human Rights, Guerrero sued the County and the district judges. Guerrero alleged that appellees had violated the Texas Commission on Human Rights Act (TCHRA) because they had discriminated against him on the basis of age and national origin. Guerrero alleged violations of 29 U.S.C. 621, et seq., and 42 U.S.C.2000e, et seq. He also alleged that the district judges and the county judge, acting under the color of state law, deprived him of property without due process as required by the U.S. Constitution and without due course of law as required by the Texas Constitution. Guerrero further alleged that, acting under the color of state law, the district judges and the county judge discriminated against him for political reasons, thereby depriving him of his free speech and associational rights in violation of the First and Fourteenth Amendments to the U.S. Constitution. He based these last claims on 42 U.S.C. § 1983.

"All appellees moved for summary judgment on the ground that there was no employer/employee relationship between (1) Guerrero and the district judges or (2) Guerrero and the County. In addition, they alleged that Guerrero had no property interest in his position because he was appointed at the discretion of the district judges or, in the alternative, that he received due process when he was informed of the application process and was interviewed.

"The district judges asserted that they had not discriminated against Guerrero, and that they had not violated section 21.051 of the TCHRA. They also claimed the affirmative defense of "failure to exhaust administrative remedies" because they were not identified as respondents in Guerrero's charge to the Texas Commission on Human Rights. The district judges contended that this failure deprived the trial court of jurisdiction because they had not received notice of the discrimination allegations prior to the commencement of the lawsuit. The district judges also asserted the affirmative defenses of 'absolute judicial immunity' and 'qualified immunity.'

"Judge Stone contended that his letter of July 15, 1993, was absolutely privileged, and that he was entitled to 'qualified immunity.' The County and the county judge asserted that the district judges had non-discriminatory reasons for not reappointing Guerrero and that the district judges were exercising their discretion as state actors. Thus, any harm to Guerrero as a result of exercising that discretion could not be attributed to the County or Judge Stone.

"Without specifying the grounds, the trial court granted all of appellees' motions for summary judgment. Guerrero contends that the trial court erred in granting the motions for summary judgment. . . .

"District Court Judges Lewis, Kilgore, and Kelly moved for summary judgment on the ground that they were not Guerrero's employers as defined in section 21.002 of the TCHRA. Appellant contends that summary judgment should not have been granted on this ground because section 21.002 specifically states that elected officials, such as district judges, are employers.

"Guerrero is correct that the district judges fall within the statutory definition of "employer." However, that alone is not enough.[178] An employment relationship must exist between appellant and the judges.[179] We, therefore, look again to the hybrid economic realities/common law control test for guidance in determining whether such a relationship exists.[180]

"As we previously stated, the most important part of the economic realities/common law control test is the right to control an employee's conduct.[181] Pursuant to state law, district judges must appoint a county auditor when the need for such a function arises.[182] The judges also decide whether the county auditor is entitled to assistant auditors and approve the persons appointed to those positions.[183] In addition, the judges have the authority to remove a county auditor from office when an investigation shows that he has committed official misconduct or is incompetent to discharge the requisite duties.[184] Other than these statutorily imposed duties, the district judges have little control over the office of county auditor.

"The duties of the county auditor are prescribed in the Local Government Code.[185] The district judges have no authority to determine who or what is audited, how the auditing functions are to be handled, or when the audits are to be conducted. Only when a county auditor fails to properly discharge these requisite duties, may the district judges determine whether to remove him from office. Thus, as a matter of law, district judges have a limited right to control the county auditor by their appointment and removal powers only.

"The economic realities component of the test looks at the economic realities of the relationship. In this case, many of the economic realities are controlled by state law. For instance, state law provides that the county auditor's salary must be set by the district judges and paid by the county.[186] The auditor's supplies are provided at the county's expense.[187] By law, the county auditor adopts and enforces the regulations necessary for a proper accounting system in the county.[188] Once appointed to the position, the county auditor is entitled to serve for two years, unless the office is discontinued or the auditor is removed for cause.[189] Moreover, a review of the auditor's duties, as specified by statute, shows that the auditor's work is not an integral part of the business of the district judges. We, therefore, conclude that the economic realities in this instance do not favor a finding of an employment relationship between the district judges and the county auditor.

"Having found that the district judges have limited right to control the county auditor and that the economic realities disfavor an employment relationship, we hold that the district judges were not Guerrero's employers under the TCHRA. Therefore, the trial court did not err in granting the district judges' motions for summary judgment on Guerrero's age and national origin discrimination claims. . . .

"Appellant alleged that the district judges and the county judge, acting under the color of law, deprived him of a property interest in the position of county auditor without due process. All four judges moved for summary judgment claiming that as a public official, Guerrero did not have a property interest in the position and was not entitled to due process.

"Public office is a "right, authority, and duty created and conferred by law which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign function of the government to be exercised by him for the benefit of the public."[190] Public office can be properly described in terms of trust, duty, and public benefit, rather than contract, employment, ownership, or possession.[191] Stated briefly, public office should be viewed not as a right, but a responsibility.[192] Every public officeholder remains in his position at the sufferance and for the benefit of the public, subject to removal from office by any constitutionally prescribed method.[193] 'An officer has no vested right in the office held by him, and thus cannot complain of an abolishment of such office or of his removal or suspension, according to law[.]'[194]

"The determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others."[195] Other factors to consider include a fixed term of office, removal provisions, and qualifications for holding the position, all of which are prescribed by statute.[196] In addition, an officer will be required by law to take an oath of office and to give a bond.[197]

"In the instant case, Guerrero held an appointed position with a statutorily prescribed term of two years.[198] The Refugio County Auditor is appointed at the discretion of the district judges who may abolish the office one year after an appointment, or remove the auditor from office for cause.[199] Statutory qualifications exist for the position, and the person appointed must take an oath of office as well as give a bond.[200]

"Most significant, however, are the sovereign functions conferred upon the county auditor. The auditor:

1) may adopt and enforce regulations, consistent with the law, necessary for the proper and speedy collecting, checking, and accounting of the revenues, funds, and fees of the county.[201]

2) shall maintain an account for each county, district, or state officer authorized or required by law to receive or collect money or other property intended for use by or that belongs to the county.[202]

3) must countersign a check or warrant to validate it as a proper and budgeted item of expenditure.[203]

4) must examine and approve each claim, bill, and account against the county before they can be allowed or paid, and such approval may not be given unless the claim was incurred as provided by law.[204]

5) shall determine the time and manner for making reports to the auditor, and any person required to make such a report, who intentionally refuses to comply with a reasonable request, commits a misdemeanor.[205] and

6) shall see to the strict enforcement of the law governing county finances.[206]

"As county auditor, Guerrero could not delegate these official duties[207] to another, other than to duly appointed assistants.[208] Nor could he be compelled to delegate these duties.[209]

"When acting as county auditor, Guerrero was not subject to the orders of the commissioners court.[210] As county auditor, Guerrero had broad powers to oversee county finances and prescribe systems for the accountability of county funds.[211] The independent nature of Guerrero's position was assured by placing the power of appointment and dismissal in the hands of the district judges.[212]

"For these reasons, we hold that Guerrero was a public official who did not have a property interest in his position beyond the end of the last two-year term to which he was appointed. See Tarrant County, 635 S.W.2d at 422 (public official has property interest that may be protected from unlawful interference with possession and conduct of such office during official's incumbency). The record reflects that Guerrero completed his eleventh two-year term before the new auditor assumed office. Lacking a complaint about unlawful interference during his incumbency, Guerrero had no property interest in his position. See id. The requirements of procedural due process apply only to the threatened deprivation of property interests requiring protection of the federal and state constitutions.[213]

"Because we have held that Guerrero did not have a property interest in his position beyond the end of his eleventh two-year term, Guerrero was not entitled to procedural due process when the district judges decided to open the appointment process to other applicants. We hold that the trial court did not err in granting all four judges' motions for summary judgment on this issue. We overrule Guerrero's fifth point of error.

"Relying on 42 U.S.C. § 1983, Guerrero alleged that the county judge, for political reasons, had urged that he not be reappointed, thereby acting under color of law to deprive him of his First and Fourteenth Amendment rights. Guerrero contended that the county judge's letter of July 15, 2022 to the district judges prevented his reappointment. Specifically, appellant complained of the following sentence:

"This Commissioners Court wants an auditor that will be impartial, independent, capable and willing to perform the statutory duties and fulfill requirements of the position."

"Guerrero claimed that this sentence showed that Judge Stone was biased against him for political reasons. Guerrero's § 1983 claim was made even though, by law, Judge Stone had no role in the appointment process.

"To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the following two elements: 1) that he was deprived of a right or interest secured by the Constitution and laws of the United States, and 2) that the deprivation occurred under color of state law.[214] A person does not act under color of state law solely by virtue of a relationship to the state; but depending on the person's function.[215] Regardless of one's affiliation with the state, "a person acts under color of state law only when exercising power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' "[216] If state law has imposed a duty to report, investigate, monitor, or regulate without granting a duty to exercise state-conferred legal control over the underlying persons or events, there is no conduit through which an exercise of state power can be said to have caused the constitutional injury.[217]

"The county commissioners court, with the county judge as presiding officer, exercises power and jurisdiction over all county business, as prescribed by state law.[218] Maintaining finance records and examining accounting records of the county are among the functions of the commissioners court.[219] In order to fulfill these functions, the commissioners court may authorize an independent audit of the accounts and officials if the audit would best serve the public interest.[220] This audit can include the office of the county auditor.[221]

"In the instant case, the county judge and commissioners of Refugio County determined at the end of 1991 and again at the end of 1992 that an independent audit of all county officials was necessary. At the time of each audit, the accountants also performed an investigation and evaluation of the county's system of internal accounting control. Neil Snedeker, the certified public account who conducted the audits, submitted the results of these studies in the form of management letters. These management letters were presented to the commissioners court, and appellant received a copy. According to the 1991 letter, many county offices, most notably that of the county auditor, were deficient in accounting procedures.

"In July 1993, the county judge sent copies of the management letters to the district judges for their review. In addition, Judge Stone sent his July 15, 2022 letter, expressing concern with Guerrero's accounting practices. Judge Stone noted that the management letters indicated that Guerrero was not performing his statutory duties and not following accepted accounting procedures. Judge Stone pointed out that the 1992 management letter indicated that Guerrero had apparently not attempted to correct the shortcomings noted in the 1991 management letter. Judge Stone then explained his reluctance to address the issue with the county auditor because the position was supposed to be free of all outside influence and because Judge Stone felt corrective measures were better left to the district judges. Judge Stone informed the district judges that the county commissioners court wanted to continue the auditor's position, and asked the district judges to consider opening the position to other applicants when Guerrero's term expired.

"In authorizing the audit, the commissioners court was investigating facts concerning county financial procedures, and Judge Stone's letter informed the district judges of that investigation. However, once the letter was written, Judge Stone had no state-conferred legal control over how the district judges addressed the issues raised by the letter. The summary judgment evidence established that, as a matter of law, Judge Stone had no legal control over or duty to be involved in the process of appointing the county auditor. Instead, appointing a county auditor falls within the discretionary duties of the district court judges of that county. As such, those judges could decide who to appoint as auditor, to remove a person from that office, or to eliminate the position entirely, whether this met with the approval of county officials or not. Even if Judge Stone's letter was interpreted as politically motivated, without state-conferred legal control, Judge Stone could not be liable under § 1983. Thus, Guerrero has failed to establish an element of his cause of action, namely that the judge was acting under color of state law. Accordingly, we hold that the trial court did not err in granting Judge Stone's motion for summary judgment on Guerrero's § 1983 claim.

"Guerrero also asserted a § 1983 claim for political discrimination against the district judges.

"It is well-settled that a motion for summary judgment must expressly state the grounds upon which it is made.[222] Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court.[223] A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and a court may not rely on briefs or summary judgment evidence in determining whether grounds are expressly presented.[224]

"After reviewing the record, we find that the district judges did not address Guerrero's § 1983 claim for political discrimination in their motions for summary judgment. We find, however, that the district judges asserted the affirmative defenses of "absolute judicial immunity" and "qualified immunity" in their motions for summary judgment.

"Judges enjoy absolute immunity from damage claims arising out of acts performed in the exercise of their judicial functions even if acting in bad faith or with malice.[225]

"However, the U.S. Supreme Court has held that in civil rights cases, absolute judicial immunity applies only when a judge acts in a judicial capacity.[226][227] In Forrester, the Court held that the termination of a probation officer by a judge was an administrative act, and not a judicial act.[228] Because Judges Lewis, Kilgore, and Kelly were not acting in a judicial capacity, we conclude that they cannot assert the affirmative defense of absolute judicial immunity against Guerrero's § 1983 claim for political discrimination.

"Government officers also have a common law immunity from personal liability in performing discretionary duties performed in good faith within the scope of their authority.[229][230] This immunity is known as qualified, official, quasi-judicial, or good faith immunity.[231][232] Quasi-judicial immunity is an affirmative defense, and a movant for summary judgment has the burden to come forward with evidence to establish each element of the defense.[233] To prevail, the district judges had to establish: 1) that their positions had quasi-judicial[234] status, 2) that they were acting within their authority, and 3) that they were acting in good faith.[235]

"Even if we were to assume that the district judges proved the first two elements, we conclude that they did not establish the good faith element. The only evidence we find in the record on the issue of good faith is contained in the judges sworn affidavits. Although the affidavits state that the judges sole concern was the appointment of the best possible person and that age, race, gender, and disability were not considered, the affidavits do not address Guerrero's political discrimination claim. Moreover, the test for good faith is one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith.[236]

"To be entitled to summary judgment, a government official must prove that a reasonably prudent official might have believed that the action taken was appropriate.[237] The official does not have to prove that it would have been unreasonable to take a different action; nor must the official prove that all reasonably prudent officials would have acted as he did.[238] The district judges offered no evidence that could lead us to conclude that reasonably prudent judges would believe their actions were appropriate.

"Because the district judges did not address Guerrero's § 1983 claim for political discrimination and because they did not establish that they are entitled to immunity, we hold that the trial court erred in granting the district judges' motions for summary judgment against Guerrero's § 1983 claim for political discrimination.[239]

"We reverse the trial court's summary judgments for Judge Lewis, Judge Kilgore, and Judge Kelly against Guerrero's § 1983 claim for political discrimination and remand that cause of action to the trial court for further proceedings. We affirm the trial court's summary judgments for Judge Lewis, Judge Kilgore, and Judge Kelly against the remainder of Guerrero's causes of action. We affirm the trial court's summary judgments for Refugio County and Judge Stone." Guerrero v. Refugio County 946 S.W.2d 558 (Tex.Civ.App.-Corpus Christi 1997)

"The appellants brought a declaratory judgment action against the City of Houston alleging the City assessed an unauthorized warrant fee. Both parties moved for summary judgment. The trial court denied the appellants' motion and granted the City's motion. In two points of error, the appellants complain the trial court erred in rendering summary judgment in the City's favor. We affirm in part, and reverse and remand in part.

"The appellants sued the City and sought declaratory and injunctive relief, class certification, the return of all fees paid, attorney's fees, and costs. They alleged the City was charging a $35 warrant fee that was not authorized by any statute. They argued that although the Code of Criminal Procedure authorized the imposition of the warrant fee at the time of conviction, the City had charged them a warrant fee even though they were not convicted.

"[T]he City . . . moved for summary judgment on the basis that it was not liable because: . . . the City is shielded from liability under the doctrines of sovereign immunity, governmental immunity, and judicial immunity. . . [240]

"The appellants moved for partial summary judgment on the basis that: . . the City unlawfully charged a $35 warrant fee;. . . the City is not entitled to any affirmative defenses. . . . .

"The appellants contend there is no basis in law for the City's immunity. In their supplemental motion for summary judgment, the City argued that Civil Practices and Remedies Code sections 101.053 and 101.055 precluded them from liability. We find the City's arguments misplaced.

"Under section 101.053, judges enjoy absolute judicial immunity from liability for judicial acts, no matter how erroneous the act or how evil the motive, unless the act is performed in the clear absence of all jurisdiction.[241] The waiver of immunity under the Texas Tort Claims Act does not apply to:

a claim based on an act or omission of a court of this state or any member of a court of this state acting in his official capacity or to a judicial function of a governmental unit. "Official capacity" means all duties of office and includes administrative decisions or actions.[242]

"The City does not cite, nor do we find any authority, supporting its contention that the $35 warrant fee was imposed through a "judicial function" of the City. We conclude that the doctrine of judicial immunity under section 101.053 does not shield the City from immunity in this case. See City of Houston v. Swindall, 960 S.W.2d 413, 417 (Tex. App.-Houston [1st Dist.] 1998, no writ) (in analyzing derived judicial immunity, we determine whether activities of party invoking immunity are intimately associated with judicial process, or whether party is functioning as integral part of judicial system or as "arm of the court," and court determines whether act is judicial in nature by its character, not by character of agent performing it).

"Furthermore, the City does not cite any cases holding that a governmental unit is shielded from liability for the unauthorized assessment of warrant fees. We recognize that governmental units may be immune from liability under certain circumstances involving collection of fees and taxes. In a suit for personal injuries caused by the State Comptroller, our Supreme Court stated the purpose behind section 101.055:

The exclusion contained in section 101.055 for claims arising 'in connection with assessment or collection of taxes by a governmental unit,' closely tracks the federal exclusion for '[a]ny claim arising in respect of the assessment or collection of any tax. . . .'.[243] Prior to the passage of the Texas Tort Claims Act, the federal counterpart had been construed to limit the United States' governmental immunity to claims regarding injuries which result directly from the assessment or collection of taxes.[244] We adopt a similar construction for section 101.055 of the Tort Claims Act.

"Our decision today is consistent with our interpretation of other exceptions to the waiver of immunity contained in the Tort Claims Act. In State v. Terrell,[245] we considered the extent of protection from suit for police and fire departments afforded by section 101.055(3) of the Act for policy decisions as to when and how to provide protection. Interpreting that exception narrowly, we held that the State could be sued for injuries arising from the negligent non-emergency operation of a police vehicle because the legislature intended to exclude only those acts or omissions which constitute the execution of, or actual making of policy decisions concerning protection. Similarly, we conclude that the legislature intended to limit the Comptroller's immunity to only those acts or omissions which constitute implementation of policy decisions on how to collect or assess taxes.[246]

"We conclude that the imposition of unauthorized fees does not constitute the 'implementation of policy decisions on how to collect or assess taxes.' Accordingly, we are persuaded that section 101.055 does not operate to bar the appellants' suit for the unauthorized assessment of a $35 warrant fee. Therefore, we conclude that the rendition of summary judgment on the basis of sections 101.053 and 101.055 of the Texas Civil Practice and Remedies Code was not proper.

Halsey v. Dallas County No. 05-00-01518-CV May 31, 2022 (Tex.App. - Dallas 2001)

Issues: Are errors by a court reporter protected by judicial immunity? The court is confused by judicial immunity and other concepts which Texas courts have called derived judicial immunity. If judicial immunity exists to allow judges to make discretionary judgments whithout fear, do court reporters have the discretion to prepare transcripts which do not reflect the words that were said in court but contain other words? If they do not have discretion to write the transcript as fiction, what is the basis for immunity? This court's analysis is not much better than the court reporter's transcription.

Sandra Halsey brings this interlocutory appeal of a denial of her motion for summary judgment.[247] Halsey brings one point of error contending she was protected by derived judicial immunity, and therefore, the trial court erred in denying her motion for summary judgment. For the reasons set forth below, we reverse and render summary judgment for Halsey on her affirmative defense of judicial immunity.

Sandra Halsey was the official court reporter for the Criminal District Court No. 3 in Dallas County. Halsey was paid a salary for her services as a court reporter and also was compensated for preparing the reporter's record of the trials on which she reported. Halsey reported and prepared the reporter's record in the case styled State of Texas v. Darlie Lynn Routier, Cause No. F96-39973-J. On June 2, 2000, after Halsey had prepared and filed the reporter's record in the Routier case, Dallas County brought suit against Halsey for fraud, breach of contract, and violations of the Texas Deceptive Trade Practices Act. Although Halsey certified the reporter's record was "correct, just and unpaid," Susan Simmons, the certified court reporter who later corrected the Routier transcript, testified that approximately 18,000 errors were found in 6,000 pages of transcript. On June 8, 2000, Halsey filed a motion for summary judgment asserting the defense of judicial immunity. The trial court denied Halsey's motion for summary judgment on August 31, 2000. Halsey brought this appeal from the denial of her motion for summary judgment.

In the present case, the facts are not in dispute. Whether official court reporters have the protection of judicial immunity is a question of law for this Court.

It is well established that judges are absolutely immune from liability for judicial acts that are not performed in the clear absence of all jurisdiction, no matter how erroneous the act or how evil the motive.[248] Judges are granted broad immunity because of the special nature of their responsibilities.[249] Judicial immunity, which is firmly established at common law, protects not only individual judges but benefits the public in "whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences."[250]

When judges delegate their authority or appoint others to perform services for the court, the judicial immunity that attaches to the judge may follow the delegation or appointment.[251] Officers of the court who are integral parts of the judicial process, such as court clerks, law clerks, bailiffs, constables issuing writs, and court-appointed receivers and trustees, are entitled to judicial immunity if they actually function as an arm of the court.[252] This type of absolute immunity is referred to as "derived judicial immunity."[253] The policy underlying derived judicial immunity guarantees an independent, disinterested decision-making process, as well as prevents harassment and intimidation that might otherwise result if disgruntled litigants could vent their anger by suing the person who presented the decision maker with adverse information.[254]

Courts around the country have followed the lead of the United States Supreme Court and adopted a functional approach to determine whether a party is entitled to absolute immunity.[255] Under the functional approach, courts determine whether the activities of the party seeking immunity are intimately associated with the judicial process.[256] The question is whether the activities undertaken by the party are "functions to which the reasons for absolute immunity apply with full force."[257] In other words, a party is entitled to absolute immunity when the party is acting as an integral part of the judicial system or an "arm of the court."[258]

We agree with those courts that have applied the functional approach to determine whether a party should be immune from suit based on derived judicial immunity. Applying a functional analysis, we must now determine whether Halsey, acting within her duties as an official court reporter, was functioning as an integral arm of the court and was therefore entitled to summary judgment based on her affirmative defense of judicial immunity.

The Texas Government Code requires that each judge of a court of record appoint an official reporter.[259] . An official court reporter is a sworn officer of the court and holds office at the pleasure of the court.[260] The duties of a court reporter are vital to the judicial process; the court reporter must make a record of the court proceedings, make note of objections and rulings, mark and file exhibits, prepare requested transcripts, and perform other acts relating to the reporter's official duties as the trial court directs.[261] An official court reporter is subject to mandamus for refusal to perform her official duties.[262] Without a proper record, a party would be precluded from presenting a complaint for appellate review; a party must present a record to the appellate court sufficient to show error requiring reversal.[263] Furthermore, if the reporter's record is lost or destroyed, rule of appellate procedure 34.6(f) allows for a new trial under certain circumstances. Based on these considerations, we conclude the official court reporter's duties are an integral part of the judicial system and are intimately associated with the judicial process. In other words, the trial judge's judicial immunity extends to the official court reporter because the official court reporter functions as an "arm of the court."

Further, the policies underlying derived judicial immunity -- the need to guarantee an independent, disinterested decision-making process and prevent harassment and intimidation of those through whom the court functions,[264] -- apply with equal force to suits against court reporters as well as to suits against those previously found to lie within the ambit of derived judicial immunity. Allowing a court reporter to be sued by disgruntled litigants based on the reporter's performance of his or her official duties would tend to subvert those policies, just as surely as if litigants were allowed to sue court clerks, law clerks, bailiffs, constables issuing writs, and court-appointed receivers and trustees -- all of whom are integral parts of the judicial process and are protected by derived judicial immunity.[265]

Dallas County concludes its appellate argument by contending that allowing a court reporter the defense of judicial immunity would negate the reporter's liability for inaccurate and unreliable transcriptions of proceedings before the court. However, in addition to the remedy of mandamus, there are other alternatives to discipline a court reporter and to rectify defects in a reporter's record. When the parties dispute the contents of the reporter's record, rule 34.6(e) of the rules of appellate procedure requires the trial court, after notice and hearing, to order the court reporter to correct any inaccuracies and certify the corrected transcription of the proceedings. The Texas Court of Criminal Appeals has ordered that in the event of a flagrant violation of its order regarding the preparation of the reporter's record, the appellate court may require the court reporter to amend the reporter's record, or prepare a new reporter's record in proper form, at the reporter's expense.[266] Further, the appellate court may enter any order necessary to ensure the timely filing of the appellate record.[267] The court reporter is also subject to discipline by the Court Reporter's Certification Board for failure to properly prepare the reporter's record or to comply with the requirements of the Uniform Format for Texas Court Reporters.[268]

We conclude an official court reporter functions as an integral part of the court; therefore, Halsey is entitled to summary judgment based on her affirmative defense of judicial immunity.

. . . [W]e reverse and render judgment for Halsey on her defense of judicial immunity.

Issues: [This is not a judicial immunity case.] Immunity pleading and proof requirements.

"This is an appeal from the dismissal of a suit for damages for personal injuries alleged to have been intentionally inflicted on appellant by Carlos Martinez. It alleges liability not only on the part of Martinez but on the part of the Texas Department of Public Safety (DPS). DPS's liability is claimed for "negligent and (sic) entrustment which leads to False arrest, False Imprisonment and malicious prosecution." The Attorney General of Texas filed an answer for both Martinez and DPS. The answer consisted of a general denial and a plea of the affirmative defenses of self defense and legal justification. The answer also included a counter-claim for "his injury and property damage" as well as special exceptions claiming defendant was entitled to "qualified immunity" and asserting his defense of "quasi-judicial" immunity. The only request for relief contained in the defensive pleading is a request for judgment on the counter-claim. We reverse the dismissal and remand the case for further proceedings in the trial court.

"On December 18, 1989, appellant sued appellees for assault committed incident to arrest. Six months after filing their answer and counter-claim, appellees filed a motion for default judgment based on the fact that appellant had not answered the counter-claim. The court set a hearing on appellee's special exceptions for August 20, 1990. On that date, appellees appeared and, instead of ruling on the special exceptions, the trial court signed an order granting the default judgment.

"The trial court entered an "Order Sustaining Defendant's Special Exceptions" on September 20, 1990. Trial of the case had previously been set for December 3, 1990. Four days before trial, appellant filed amended pleadings. On the day of trial, both parties appeared, and the trial court noted that the default judgment was not final because it contained no language which would show its finality. However, the trial court granted appellees' motion to dismiss appellant's case because appellant had not amended his pleadings within seven days of trial. The court refused to allow the late amendment of the pleadings, and since the special exceptions had been granted, appellant's original petition did not state a cause of action.

. . .Points of error . . complain of the granting of the special exceptions alleging, qualified and quasi-judicial immunity. We agree that it was error for the trial court to grant these special exceptions.

"Tex.R.Civ.P. 85 provides that a defendant's pleadings may consist of, among other things, special exceptions and matters in avoidance and estoppel. The purpose of special exceptions is to furnish the adverse party a medium by which to force clarification of pleadings when they are not clear or sufficiently specific. [269] Immunities are affirmative defenses.[270] They open a way to establish independent reasons why the plaintiff should not recover, even if the facts alleged in the petition are correct.[271] Affirmative defenses are matters of avoidance and must be proven at the trial of the case.[272] Appellee cites several federal cases for the proposition that immunity defenses are threshold issues that must be determined before a case may proceed. This is not the rule in Texas. Here an affirmative defense is interposed to defeat a prima facie case made by the plaintiff. When, as here, the trial court sustains special exceptions, the injured party has two options: he may amend to meet the exception, or he may stand on the pleading, refuse to amend, and test the validity of the trial court's ruling on appeal.[273] When the effect of the trial court's sustaining the exception is to dismiss the cause of action, exceptions have the effect of the old general demurrer, and upon appellate review, the allegations of plaintiff's petition must be taken as true.[274] Because the pleadings called special exceptions were affirmative defenses and not exceptions, the trial court erred in sustaining them. The appellant's original pleadings stated a cause of action. It was error for the trial court to dismiss the case. . . . The judgment of the trial court is reversed and the case is remanded to the trial court.

[Estate, guardianship, and trial lawyers who bring claims for minors or incapacitated persons should take note.]

Issue: May a judge direct investments? Is judicial immunity a factor in determining the proper limit on judicial power. Should a judge refrain from an act because the judge would have immunity and the person who performs the act should be subject to suit?

"This original proceeding presents . . . issues arising from the settlement of a personal injury suit brought on behalf of a minor: . . . whether section 142.001(a) of the Texas Property Code gives a trial court the authority to order settlement proceeds of a minor, who is represented by a guardian ad litem, to be invested in an annuity from a particular insurance company... A majority of this court holds that as to the first issue the trial court below acted without authority, but as to the second issue the trial court acted within its discretion. In the case at bar, Taffidie Nickole McGough was rendered permanently brain-damaged when she fell into a swimming pool. Suit was filed by Bill and Linda Wonzer, McGough's grandparents and temporary managing conservators. During the litigation, the court appointed John Culbertson as guardian ad litem to represent Taffidie's interests. After a jury trial but before the jury returned its verdict, the parties reached a settlement which would generate about $10.5 million for Taffidie's benefit. The defendants tendered the settlement proceeds into the registry of the trial court.

"On September 4, 1991, the trial court held a hearing to determine the best method to invest the settlement proceeds. On November 4, 1991, the ad litem filed an "Amended Motion to Create § 142.005 Trust for the benefit of Taffidie McGough." Eleven days later, Judge Moore entered the final judgment, apportioned the settlement, awarded Culbertson his fees for serving as guardian ad litem and discharged him of any further responsibility for the case. In addition, he issued the following order: 'In accordance with the provisions of the Texas Property Code § 142.001(a) ... [it is] ORDERED . . . that the Clerk of the Court disburse the sum of $4,000,000 by check payable to METROPOLITAN LIFE INSURANCE COMPANY ... for an annuity policy to fund future periodic payments for Taffidie McGough.'

"Section 142.001(a) of the Texas Property Code, upon which Judge Moore based his order, provides that:

In a suit in which a minor or incapacitated person who has no legal guardian is represented by next friend, the court on application and hearing may provide by decree for the investment of funds accruing to the minor or other person under the judgment in the suit.

"By its terms, this provision authorizes a trial court to order the investment of funds when a minor who has no legal guardian is represented by next friend.[275] Since Taffidie was represented by a guardian ad litem, John Culbertson, and not a next friend, the trial court could not order an investment plan pursuant to section 142.001(a).

"Second, section 142.001(a) permits a trial court to order an annuity to be purchased for a minor only if the following conditions are met: the minor is represented by next friend, the next friend makes an application to the trial court, and the trial court conducts a hearing. In this case, Judge Moore held a hearing on September 4, 2022 which satisfied the last prong. However, the first two prongs were not fulfilled because Taffidie was not represented by next friends and even if she had been, her next friends steadfastly opposed the purchase of an annuity and refused to make an application. During the hearing, when the parties could not agree on how to invest the funds, the trial court stated:

If you do not come up with an agreement that I feel is equitable and fair for this child, then I will go forward. I will instruct the ad litem to make an application. ... And I will go ahead with the annuity program.

"Although this approach may have seemed expedient, the trial court cannot force a guardian ad litem to make application for the purchase of an annuity or order such an investment sua sponte.[276]

"Third, the trial court cannot require that settlement proceeds be placed with a specific company, such as Metropolitan Life Insurance Company, or set the exact rates and terms of the investment absent a specific request to that effect. In short, a trial judge should not shed his judicial robe for the charts and graphs of an investment adviser. Apart from the expertise needed to make these complicated decisions, the trial court would be immune from liability for any unfortunate decision, whereas Taffidie would have recourse against any other investment adviser who undertook an imprudent investment strategy. See Turner v. Pruitt, 161 Tex. 532, 534, 342 S.W.2d 422, 423 (1961) (noting that a judge is immune for actions in the course of a judicial proceeding over which the court has jurisdiction); Rodriguez v. Rubin, 731 S.W.2d 141, 142 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.); McClendon v. Gahagan, 6 S.W.2d 796, 799 (Tex.Civ.App.--Waco 1928, writ dism'd w.o.j.) (minors had no recourse for the "unfortunate investment" ordered by the trial court).

Issues: Interlocutory appeal from denial of summary judgment for judicial immunity.

"This is an interlocutory appeal from the trial court's denial of summary judgment based on appellants' claims of official immunity, judicial immunity, and sovereign immunity. We reverse and render.

"Jesse Morales sued the City of Weslaco and Gilbert Garza, individually and in his capacity as Weslaco Municipal Judge, for slander and interference with prospective contracts. Specifically, Morales alleged that Garza, while acting in his capacity as Municipal Judge, discouraged Ariceli Hernandez from using Morales as a bail bondsman to secure the release of certain members of her family. Garza allegedly 'launched into a loud, vicious and slanderous tirade, freely punctuated with profanity. Whereupon he made it very clear that said Defendant Garza did not approve of Plaintiff Morales. Furthermore, that Defendant Garza would refer Ms. Hernandez to another bondsman, and that using the services of Jesse Morales would jeopardize her family members' freedom. In that Defendant Garza would use his influence and position as Municipal Judge to insure that Ms. Hernandez's family members would not obtain release on bond.'

"Garza and the City of Weslaco answered and raised the defenses of sovereign immunity, qualified immunity, and judicial immunity. They further moved for summary judgment, claiming that Garza is entitled to judicial and official immunity because the actions for which he is being sued were performed while he was acting in good faith within his official capacity as Municipal Judge. Weslaco likewise asserted that it is derivatively entitled to sovereign immunity from liability for Garza's actions. Appellants attached Judge Garza's affidavit to their motion for summary judgment, by which Judge Garza related the incident with Ms. Hernandez referred to in the plaintiff's petition. Garza received two telephone calls from Hernandez at 1:00 a.m. and 2:30 a.m. in the early morning hours of February 13, 1989, asking that he set bail for her family members. Garza told Hernandez that he could not help her until 9:00 a.m., at which time he set bail for her family. Garza denied making any slanderous or defamatory remarks about Morales to Hernandez, asserted that his conversations with her were made in his official capacity as a Municipal Judge, and claimed that he was acting in good faith in his discussions with Hernandez about bail bonds.

"The trial court denied the motion for summary judgment . . . . appellants complain that Garza is entitled to absolute judicial immunity for any comments he allegedly made about Morales . . . .

"Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments.[277] Appeal is statutorily authorized from an interlocutory order that 'denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.'[278] .

"Accordingly, appeal from the present denial of summary judgment on Garza's claims of judicial immunity as a municipal judge is authorized under section 15.014(5). In addition, to the extent that Weslaco's claim of sovereign immunity is based on, or derivative of, its official's immunity from suit, i.e., Garza's judicial immunity as a municipal judge, the city also may appeal denial of summary judgment under section 51.014(5).[279]

"With regard to the doctrine of judicial immunity, Texas follows the same principles set out by the United States Supreme Court in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), that absolute immunity extends to all judicial acts unless such acts fall clearly outside the judge's subject-matter jurisdiction.[280] Immunity applies even when the judge is accused of acting corruptly or maliciously.[281][282]

"Absolute privilege is founded on the theory that the good it accomplishes in protecting the rights of the general public outweighs any wrong or injury which may result to a particular individual. It protects the public interest by shielding responsible government officials against harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of actions taken in the exercise of their official responsibilities, even though, at times, it may result in individual citizens suffering pecuniary loss as a result of oppressive or malicious actions by government officials.[283]

"In addition, in determining whether an act was clearly outside a judge's jurisdiction for judicial immunity purposes, the focus is not on whether the judge's specific act was proper or improper, but on whether the judge had the jurisdiction necessary to perform an act of that kind in the case.[285][286]

"Specifically with regard to communications made by or to a judge, any written or oral communication in the due course of a judicial proceeding is absolutely privileged and cannot constitute the basis of a civil action in damages for defamation, even if the communication was uttered with malice or was irrelevant to the issues involved in the case.[287] The privilege applies to statements made by the judge, jurors, counsel, parties or witnesses, and it attaches to all aspects of the proceedings.[288] The privilege further extends to out-of-court communications which bear some relationship to the proceeding.[289]

"In particular, the federal courts have applied the same general principles of judicial immunity to protect a judge from liability for any comments, or even malicious criticism, made while acting in his judicial capacity.[290]

"In the present case, it is clear from Morales' petition that Hernandez contacted Garza in his capacity as a municipal judge with regard to the matter of setting bail on her relatives. The setting of bail is clearly a judicial function. The Texas Code of Criminal Procedure provides for the arresting officer to take the arrested person before a magistrate in order, among other things, to "admit the person arrested to bail if allowed by law."[291] Moreover, "magistrates" are defined under the Code of Criminal Procedure to include "the judges of the municipal courts of incorporated cities or towns."[292]

"Though she contacted him after business hours, it is clear that Hernandez spoke to Garza for the purpose of persuading him to perform the judicial function of setting bail on persons who could be brought before him for that purpose in his capacity as a municipal judge. Accordingly, Garza's comments to Hernandez concerning bail, even if they bitterly attacked Morales, were made in his judicial capacity and are entitled to judicial immunity.

"We REVERSE the order of the trial court denying summary judgment and hereby RENDER a take-nothing summary judgment in favor of Garza and the City of Weslaco on the grounds of judicial and sovereign immunity.

Thank you for your business! We hope you found this course educational, interesting, and useful. Please go to www.YouKnowItAll.com to observe the Discussion and to certify your actual study hours.

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[13] For example, a judge presiding over a court which has jurisdiction over a case pending in that court.

[14] An order which establishes rules for conduct in a particular pending case may be within judicial immunity.

[16] Defenses other than judicial immunity, such as legislative immunity, may be apply. Those defenses are beyond the scope of this course.

[17] This is not a typographical errors. The judges purport to order themselves to act in a certain manner. A skeptic may doubt that a judge will hold himself in contempt of his own order to himself, but we are not skeptics. Since the order was void, we will never see the judge accusing himself, defending himself, and judging himself. It would have been interesting to observe.

[18] The United States Supreme Court observed that acting based on a bribe is a crime even if, as many bribery defendants claim, the same decision would have been made without the bribe. "A mayor is guilty of accepting a bribe even if he would and should have taken, in the public interest, the same action for which the bribe was paid. (That is frequently the defense asserted to a criminal bribery charge -- and though it is never valid in law, see, e. g., United States v. Jannotti, 673 F. 2d 578, 601 (CA3) (en banc), cert. denied, 457 U.S. 1106 (1982), it is often plausible in fact.)" Columbia Outdoor Advertising v. Omni Outdoor Advertising, 499 U.S. 365 (US 1991)

"Maloney was one of many dishonest judges exposed and convicted through""Operation Greylord," a labyrinthine federal investigation of judicial corruption in Chicago. See United States v. Maloney, 71 F. 3d 645 (CA7 1995), cert. denied, 519 U. S. ___ (1996); see generally J. Tuohy & R. Warden, Greylord: Justice, Chicago Style (1989). Maloney served as a judge from 1977 until he retired in 1990, and it appears he has the dubious distinction of being the only Illinois judge ever convicted of fixing a murder case. [n.2] Before he was appointed to the bench, Maloney was a criminal defense attorney with close ties to organized crime who often paid off judges in criminal cases. App. 54-66; 81 F. 3d 684, 696 (CA7 1996) (Rovner, J., dissenting) ("[B]y the time Maloney ascended to the bench in 1977, he was well groomed in the art of judicial corruption"). Once a judge, Maloney exploited many of the relationships and connections he had developed while bribing judges to solicit bribes for himself. For example, Lucius Robinson, a bailiff through whom Maloney had bribed judges while in practice, and Robert McGee, one of Maloney's former associates, both served as "bag men," or intermediaries, between Maloney and lawyers looking for a fix. Two such lawyers, Robert J. Cooley and William A. Swano, were key witnesses against Maloney at his trial. Maloney, supra, at 650-652.

Maloney was convicted in Federal District Court of conspiracy, racketeering, extortion, and obstructing justice in April 1993.

The court's footnote 2 stated: "Although apparently the first in Illinois, Maloney is not, unfortunately, the first American judge to be convicted of taking bribes in murder cases. See, e.g., Ohio v. McGettrick, 40 Ohio App. 3d 25, 531 N. E. 2d 755 (1988); In re Brennan, 65 N. Y. 2d 564, 483 N. E. 2d 484 (1985)."

[24] Mireless is a per curium opinion issued without argument and with three dissents, with two justices dissenting to the decision to consider the case and the decision to decide it without argument.

[25] There is authority that suggests the contrary conclusion. Clerks have been held to have "judicial immunity" for their actions which were directed by the judge. That holding may be erroneous. The court thought the clerk should be immune. However, not all immunity is judicial immunity. Nothing prevents a court from articulating a concept of "clerk's immunity" with appropriate elements and boundaries. Machine gunning the defendant would seem to be outside any such boundaries, but the concept has not been tested.

[26] There may be limited exceptions, such as the judges underlings who act for the judge. That is not the circumstance we address here.

[28] Forrester v. White, 484 US, at 227, 229, 98 L Ed 2d 555, 108 S Ct 538; Stump v Sparkman, 435 US, at 360, 55 L Ed 2d 331, 98 S Ct 1099.

[29] Id., at 356-357, 55 L Ed 2d 331, 98 S Ct 1099; Bradley v Fisher, 13 Wall, at 351, 20 L Ed 646."

[30] See Doe v. McMillan, 412 U.S. 306, 319-325, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973).

[31] See C.M. Clark Insurance Agency, Inc. v. Maxwell, 156 U.S.App.D.C. 240, 479 F.2d 1223, 1227 (1973); McCray v. Maryland, 456 F.2d 1, 3-4 (4th Cir. 1972); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 362 (1971), rev'd on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Dodd v. Spokane County, 393 F.2d 330, 335 (9th Cir. 1968); Robichaud v. Ronan, 351 F.2d 533, 537 (9th Cir. 1965); Corsican Productions v. Pitchess, 338 F.2d 441, 444 (9th Cir. 1965); cf. Johnson v. Alldredge, 488 F.2d 820, 824 (3d Cir. 1973); Hampton v. City of Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).

[33] The title is not the key. The word "judge" is used without qualification to make the course easier to read. A person may have judicial immunity without a title of judge. A master, commissioner, or other person who has a job description like that of a judge acts may have judicial immunity. The use of the word judge is simply a shorthand reference to a judge-like capacity. That is the case throughout this course.

[42] See Stump v. Sparkman, 435 US 349, 55 L Ed 2d 331, 342 98 S Ct 1099, footnote 10 (1978), and Spencer v. City of Seagoville 700 S.W.2d 953 (Tex.App.-Dallas 1985)

[43] The Texas Supreme Court uses the word "jurisdiction." "Jurisdiction" is the word used in the judicial immunity context. Without "jurisdiction" there is no immunity. Is the meaning of the word jurisdiction here, applicable to that context? Did Judge Street have judicial immunity? See the CLE course on the Texas law of judicial immunity at YouKnowItAll.com.

[46] Texas judges who preside over estates may find the concept that they lack immunity if they lack jurisdiction disconcerting since jurisdiction over estates in Texas can be difficult to determine. See the YouKnowItAll.com course "Texas Estate, Will, Trust, and Probate Case Review - Course # 1 Current Cases on Trial and Appellate Court Jurisdiction" at YouKnowItAll.com

[50] Turner v. Upton County, Texas, 915 F.2d 133, 137, footnote 6 (5th Cir. 1990)

[51] "The district court decided that receivers are court officers who share the immunity awarded to judges." Kermit Const. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 2 (1976)

"[A] receiver who faithfully and carefully carries out the orders of his appointing judge must share the judge's absolute immunity." Kermit Const. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1976)

[52] United States v Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)

[54] Slavin v. Curry, 574 F.2d 1256, 1263 (5th Cir.1978), overruled on other grounds, Sparks v. Duval County Ranch Co., 604 F.22d 976 (5th Cir.) (en banc), aff'd, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1979)

[56] There was a case pending in the court. Potential jurisdiction was activated. He was presiding over the case.

[57] The judge was a judge. He was the presiding judge of the court. He had authority to preside over the court.

[58] This reason for the judge's error does not affect the judicial immunity analysis.

[60] Since the judge had authority to act as judge of the court, the court had subject matter jurisdiction, and a case was pending, all requirements of jurisdiction were present.

[61] Art. 1, Sec. 10, Constitution of Texas; Art. 892, [Texas] Code of Criminal Procedure; Art. 1059, [Texas] Code of Criminal Procedure.

[64] Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1150, 1151; United Production Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327, 331; State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846, 848.

[65] The particular acts may each be a "judicial act" which cannot be performed by anyone other than a judge. Often "judicial" is defined as involving discretion, decision, and judgment. These acts are mandatory and ministerial, but the court finds that immunity attaches to them. The court of appeals thought the law precluded immunity. Are acts which may be done either by a judge or someone else within the concept of judicial immunity?

[67] Footnote by J. Douglas. The opinion in Ex parte Virginia, supra, did not mention Bradley v. Fisher, 13 Wall. 335, which held that a judge could not be held liable for causing the name of an attorney to be struck from the court rolls. But in Bradley, the action was not brought under any of the Civil Rights Acts.

[68] The answer to this question is yes. In some places, in some cases, this violation is routine even in district courts.

[69] See also 173 A.L.R. p. 805, et seq.; Heyn v. Mass. Bonding & Ins. Co., Tex.Civ.App., 110 S.W.2d 261, W/E Dismd.; 34 Tex.Jur., Sec. 84, pp. 466, 467; 48 C.J.S. Judges Sec. 64, p. 1032; 51 C.J.S. Justices of the Peace Sec. 20, pp. 38, 39.

[70] The discussion of damages is interesting even though the Supreme Court reversed the holding that the justice of the peace was liable. Since cases generally find immunity, a discussion of the amount of damages which are appropriate is rare.

[73] It is easy if the jurisdictional argument recited in the following footnotes is ignored. The court takes the easy route and ignores that argument.

[74] "As we understand the twenty pages that Kimmell's pleading devoted to lack of subject matter jurisdiction, he makes two arguments. First, he contends that the defendants acted 'in a commercial capacity' by accepting United States currency, which is an instrument of interstate commerce, thereby giving the federal courts exclusive jurisdiction over the entire matter. Second, he makes reference to 'admiralty maritime law' and cites the law merchant, various provisions of the United States Code, and several United States Supreme Court opinions for the following proposition: 'Since there is no nexus attaching the aggrieved party to the courts quasi-admiralty/maritime jurisdiction based on ratification, this court is without subject matter and in personam jurisdiction over the aggrieved party under the federal law merchant.'"

[75] The court may not have understood the allegations, and may not know what to say about them. Perhaps the allegations are not capable of being understood. Still, the court seems to prefer ridicule to analysis, noting earlier in its opinion that the pleading is 45 pages and here that the jurisdictional portion is 20 pages. While ridicule might be appropriate, ridicule without analysis is not. Would the court recite the number of pages of a complaint filed by General Motors?

[78] Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

[80] Bradley v. Swearingen, 525 S.W.2d 280, 282 (Tex.Civ.App.--Eastland 1975, no writ).

[81] Kimmel was edited to eliminate references to a prosecutor since only the judge's judicial immunity is within the scope of this course.

[83] Roling v. McGeorge, 645 S.W.2d 886, 887 (Tex.App.--Tyler 1983, no writ); Avinger v. Campbell, 499 S.W.2d 698, 702 (Tex.Civ.App.--Dallas), writ ref'd n.r.e. per curium, 505 S.W.2d 788 (Tex.1974).

[86] Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980); Augustyniak v. Koch, 588 F.Supp. 793, 799 (S.D.N.Y.1984).

[88] Lane v. Dickinson State Bank, 605 S.W.2d 650, 653 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ).

[89] Professional Association of College Educators v. El Paso County Community College District, 678 S.W.2d 94, 96 (Tex.App.--El Paso 1984, writ ref'd n.r.e.).

[90] Dierlam v. Clear Lake Hospital, 593 S.W.2d 774, 775 (Tex.Civ.App.--Houston [14th Dist.] 1979, no writ); McCamey v. Kinnear, 484 S.W.2d 150, 153 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.); TEX.R.CIV.P. 91.

[92] This is an erroneous or misleading statement. On it's face, it errs by confusing a court's subject matter jurisdiction with a judge's authority to preside over a court. A judge does not have subject matter jurisdiction. A court does. A judge either has or lacks the authority to preside over the court. The court's lack of analytical precision leads to the misleading or erroneous sentence. If the statement is that the jurisdictional requirement for immunity is satisfied by one element, that being subject matter jurisdiction of the court, the statement is erroneous. If the sentence is simply sloppy writing that intended to say that jurisdiction requires subject matter jurisdiction of the court, a case begun by a pleading, and a judge authorized to preside, it is misleading because it does not say so. This erroneous or misleading statement begins a pattern of error in Texas cases. Stump did not consider mere subject matter jurisdiction of the court sufficient for judicial immunity, nor is it sufficient. Stump holds that a pleading activated the court's jurisdiction. The judge had authority to preside. Therefore, Stump can be cited as holding that a court's potential subject matter jurisdiction must be activated by a pleading in order for a judge presiding over that court and case to have judicial immunity. It may not be properly cited as holding that subject matter jurisdiction of a court, in isolation is sufficient to meet the jurisdictional requirement for immunity. Texas cases which cite Spencer for the proposition that subject matter jurisdiction is the sole jurisdictional element err. Texas cases which follow Spencer's conceptual error by referring to the "judge's subject matter jurisdiction" err. When you see Spencer cited, see if it is cited for this error

[94] Stump, 435 U.S. at 363, 98 S.Ct. at 1108, 55 L.Ed.2d at 343 (citing Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646, 649 (1872))

[95] By this citation, Spencer begins a pattern of Texas dicta regarding immunity for corrupt action by a judge. The Texas courts fail to identify it as dicta. This is dicta as to "corruption." No corruption was alleged in Spencer. Likewise, the corruption language is dicta in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Pierson is discussed in more detail in part 1 of this course. Pierson held that judicial immunity is a defense to a §1983 claim. Pierson used the word 'corruption' in its discussion of judicial immunity. It did not hold that a judge who acts corruptly may not be sued. To the contrary, it found no evidence that the judge did anything other than ruling in a consistent way in cases before him. The plaintiffs had claimed that the judge and police conspired. The only evidence was that the judge had convicted similar defendants in similar cases and had a reputation for ruling in a certain way on a certain issue. That is not evidence of "corrupt" or "malicious" conduct. It was also not even evidence of a conspiracy. It is routine for police to to have a sense of how a particular judge will handle a particular issue. The holding in Pierson is in the second paragraph below. The first is dicta:

"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' (Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

"We do not believe that this settled principle of law was abolished by 1983, which makes liable 'every person' who under color of law deprives another person of his civil rights.

[96] Spencer has been cited by other Texas courts for the proposition that judges are immune for malicious or corrupt acts. The court found no such acts. Spencer held that there were no facts supporting the allegations as to the judge's motive. There is no holding that the judge acted maliciously. There is neither an allegation or a holding that the judge acted corruptly. Spencer merely cites Pierson which includes the concepts of malice and corruption. These concepts were also dicta in Pierson. See prior footnote.

[97] See prior footnote. The holding turns on the facts, or more precisely the lack of evidence to support the allegation.

[98] See also Zimmerman v. Spears, 428 F.Supp. 759 (W.D.Tex.1977), aff'd, 565 F.2d 310 (5th Cir.1977).

[99] Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984); see also Holloway v. Walker, 765 F.2d 517, 524-25 (5th Cir.1985); Brewer v. Blackwell, 692 F.2d 387, 396-97 (5th Cir.1982).

[100] Some courts erroneously stop their analysis here and declare subject matter jurisdiction sufficient for judicial immunity. See Bradt, discussed elsewhere.

[101] Editor's note. Good faith is not required for judicial immunity. Is it required in the determination of colorable jurisdiction? Is it sufficient if there is no jurisdiction?

[105] For more goat cases, see the continuing legal education courses on Texas lawyer liability for negligent misrepresentation and Texas no evidece summary judgments.

[106] Montgomery v. Kennedy, 669 S.W.2d at 311; Pierson v. Houston Indep. School Dist., 698 S.W.2d 377, 380 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.).

[107] "Judicial acts" would be a more accurate statement. Acts which are not judicial acts may not be eligible for immunity.

[110] A suit was filed. Potential jurisdiction was activated. The acts were judicial acts in the course of that suit.

[111] The judge presented evidence that he was the judge of the court and his actions were taken as such.

[112] Texas court jurisdiction is incredibly complex. Even the statutory numbers are impressive.

[113] Apparently, Judge McDonald provided evidence that he was the judge of the court with authority to preside, and that a case was pending.

[120] Spencer does not involve corruption. The Spencer court does not address corruption in its own words, even in dicta. Spencer does include a quote from Pierson v. Ray, 386 U.S. 547 (1967) which used the word "corruptly" in dicta. Spencer is discussed elsewhere.

[121] McDuffie did not does not involve an allegation of corruption. The McDuffie court's statement about "corruption is gratuitous dicta.

[122] Spencer does involve an allegation of malicious conduct, i. e. "using his position as municipal judge to 'persecute his enemies and critics.'" However, the court did not hold that a malicious act by a judge is immune. Instead it held that there was no evidence of malice.

[123] McDuffie did not does not involve an allegation of malicious conduct. The McDuffie court's statement is gratuitous dicta.

[124] Spencer v. City of Seagoville, 700 S.W.2d 953, 957-58 (Tex.App.-Dallas 1985, no writ).

[126] Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949).

[128] Here is the weakness in the court's analysis. What action? The court does not say. No action is identified. Did the summary judgment evidence identify any particular act? If so, what? If not, is summary judgment proper? The specific acts alleged by the plaintiff should be analyzed to determine if each act is within immunity. If specific acts are not alleged, special exceptions are proper. Summary judgment is not. See Spencer.

[129] We say loosely because the "judge" may be a magistrate or in some other role in which the word "judge" is not quite right.

[130] The act related to contempt. Whether that is the same, or a separate case is an intriguing issue. Numerous substantial issues related to the various legs of the jurisdiction stool arise in contempt proceedings. Those issues were not addressed in Bradt, and we choose to leave them for a separate course. For now, we accept the assumption that two legs of the stool, subject matter jurisdiction of the court, and activation of the court's jurisdiction were present.

[131] For recusation procedures, see the YouKnowItAll.com course on Texas judicial recusation.

[132] Again we see the concept of jurisdiction. This time it relates to whether the trial court or appellate court had jurisdiction. The trial court had matters pending before it. The motion to recuse related to those matters, not matters which were before the court of appeals. Apparently Judge Casseb held that jurisdiction was in the court of appeals so he denied the motion to recuse Judge West. Judge West then acted. If there was jurisdiction for the court action, there was jurisdiction for a motion to recuse. If there was no jurisdiction to recuse, there was no jurisdiction to act.

[133] Technically mandamous did not issue unless Judge Casseb failed to follow the First Court of Appeal's orders.

[135] Suspended is the author's term. It seems appropriate for the concepts involved.

[136] A second claim was rejected on the grounds that it was factually erroneous.

[137] A judge does not have "subject matter jurisdiction." A court has subject matter jurisdiction. The court of appeals consistently confuses the concepts of "judge" and "court." Proper judicial immunity analysis requires that these concepts be carefully distinguished.

[138] In analyzing Spencer we noted that this quotation is either erroneous or misleading. The Bradt court was mislead.

[140] see Holloway v. Walker, 765 F.2d 517, 523 (5th Cir.), cert. denied, 474 U.S. 1037, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985); Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986).

[141] The court of appeals cites only one Texas case, and two fifth circuit cases. None of the three is a leading case. Is the court unfamiliar with the best authority? Was this all that was cited in the briefs?

[142] Note that the reference is to the "judge's" jurisdiction, not the "court's" jurisdiction.

"The factors we consider in determining whether a judge's act is a "judicial" one are (1) whether the act complained of is one normally performed by a judge, (2) whether the act occurred in the courtroom or an appropriate adjunct such as the judge's chambers, (3) whether the controversy centered around a case pending before the judge, and (4) whether the act arose out of a visit to the judge in his judicial capacity. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir.1993) (citing McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972)); Adams, 764 F.2d at 297 (also citing McAlester, 469 F.2d at 1282). These factors should be broadly construed in favor of immunity. Malina, 994 F.2d at 1124; Adams, 764 F.2d at 297. Not all of the factors must be met for immunity to exist. Malina, 994 F.2d at 1124; Harris v. Deveaux, 780 F.2d 911, 915 (11th Cir.1986); Adams, 764 F.2d at 297. In some circumstances, immunity may exist even if three of the four factors are not met. Adams, 764 F.2d at 297 n. 2. Nor are the factors to be given equal weight in all cases; rather, they should be weighted according to the facts of the particular case. Id. at 297.

"Adams is on point in regard to the first factor. The issuance of a show-cause order directing someone to show cause why he should not be held in contempt for his conduct is an act normally performed by a judge. 764 F.2d at 297, 298. The second factor is unimportant here, where the act complained of is the signing of an order. Where Judge West actually was when he signed the order is irrelevant; an order signed by a judge somewhere other than in his courtroom or chambers is as valid as it would have been had he signed it at the bench.

"The third and fourth factors are easily met on this record. The controversy clearly centered around a case pending before the judge (lawsuit number two). The act arose out of a "visit" to the judge in his judicial capacity: the judge signed the show-cause order (the signing is the "act") based on Bradt's conduct during the trial of lawsuit number two (in which Bradt, in representing the plaintiff, was before the judge--thus "visiting" him--who was acting in his judicial capacity in presiding over the trial).

"We answer the first question in the affirmative. West's act was a judicial one."

[144] The court refers to "his" jurisdiction, not the jurisdiction of the court. Yet, the analysis extends only to the court's jurisdiction.

[146] A judge does not have subject matter jurisdiction. A court has subject matter jurisdiction. Subject matter jurisdiction is only one of the three legs. A correct statement is that "a judge acts in the 'clear absence of all jurisdiction' if the court 'completely lacks subject matter jurisdiction.' It is better to say, that 'a judge who acts within a court's subject matter jurisdiction satisfies one of the requirements of the 'jurisdiction' element of judicial immunity, but a judge who acts outside a court's subject matter jurisdiction fails to satisfy a required element of the 'jurisdiction' requirement for judicial immunity and is not protected by judicial immunity.

[148] Stump did not hold that subject matter jurisdiction was the only leg of a one legged jurisdictional stool. Stump held that a pleading activated the court's jurisdiction, meeting the second leg. The third leg, the authority of the individual judge to preside was not an issue since he was the regular judge and there was no basis to question his authority to preside over the "case" if it constituted a case within the court's jurisdiction.

[150] In Mireless, as in Stump, there was no question of the judge's authority to preside in the court over the case. The question was whether the order was within the court's authority. In other words, the issue was the court's jurisdiction, not the judge's authority or "jurisdiction" to preside over the court and case at the time of the action.

[151] These facts involve the second jurisdictional leg, and perhaps the first. If the judge has authority over the court, and the court has subject matter jurisdiction, is there a case pending. There is no suggestion that the judge lacked authority over a case pending in the court.

[152] These facts raise the first and second legs, subject matter jurisdiction and whether a case is pending. There is no suggestion that the judge lacked authority over a case pending in the court.

[153] The quotation is not about jurisdiction. Stump did not hold that subject matter jurisdiction was the only leg of a one legged jurisdictional stool. Stump held that a pleading activated the court's jurisdiction, meeting the second leg. The third leg, the authority of the individual judge to preside was not an issue since he was the regular judge and there was no basis to question his authority to preside over the "case" if it constituted a case within the court's jurisdiction.

[154] None of the parenthetical statements address the issue of a judge who lacks authority to act for a court.

[155] The court errs. He clearly did not have authority. The court may have had jurisdiction. Judge West's potential authority was effectively suspended by the pending motion to recuse, as this very appellate court decided several years earlier when it ordered West to take no action until the motion to recuse was decided. The court then ordered "Judge West shall make no further orders and shall take no further action in the case until the motion to recuse is ruled on, 'except for good cause stated in the order in which further action is taken,' as provided in TEX.R.CIV.P. 18a(d).

[156] Was the case "before him" while the motion to recuse was unresolved, or was it before the presiding judge of the administrative judicial region or the judge appointed by the presiding judge to hear the motion to recuse?

[157] Is it? The court does not explain. Clearly the court has missed the point. It has often been said that a judge who is subject to an unrecused motion to recuse lacks "jurisdiction" to enter an order. If the First Court believes that this lack of jurisdiction is different from the lack of jurisdiction concept applicable to judicial immunity.

[159] Ex parte Holland 807 S.W.2d 827 (Tex.App.-Dallas 1991) But see In re Canales February 1, 2023 (Tex. 2001)

[161] It was never filed in the county court, contested in the county court, or transferred to the district court.

[162] "Furthermore, the appellants have waived any cause of action for conspiracy to maliciously prosecute. The appellants pled this cause of action, and all of the appellees received summary judgment on it, but on appeal the appellants do not adequately complain of the summary judgments on this particular cause of action. In their brief, the appellants do not discuss the facts relevant to a cause of action for conspiracy sufficiently to maintain a complaint that the court should not have granted summary judgment on that cause of action. The appellants do mention the alleged conspiracy a few times in the brief, but in general, conclusory terms, such as 'Judge West joined in the conspiracy to maliciously prosecute L.T. Bradt for contempt.' These statements are not a discussion of the facts as contemplated by TEX.R.APP.P. 74(f)(2); they do not amount to 'such discussion of the facts ... as may be requisite to maintain the point at issue.' There is no such discussion in the appellants' brief. This violation of rule 74(f)(2) waives any contention that the trial court erred in granting judgment for the appellees on this cause of action.

"In their motion for rehearing, the appellants point out that their brief contains authorities on conspiracy. While true, authorities alone are not sufficient to comprise an 'argument' that suffices under rule 74(f)(2), just as a discussion of the facts, without authorities, is not a sufficient 'argument' under that rule. Rule 74(f)(2) plainly requires both. Each violation of rule 74(f)(2) is a separate, independent ground of waiver of the contention. Here, the contention that the trial court erred in granting judgment for the appellees on this cause of action is waived by the appellants' failure to adequately discuss the facts

[167] Id.; Albright v. Texas Dept. of Human Servs., 859 S.W.2d 575, 578 (Tex.App.--Houston [1st Dist] 1993, no writ).

[169] Roark, 813 S.W.2d at 495; Rose v. Baker & Botts, 816 S.W.2d 805, 809 (Tex.App.--Houston [1st Dist.] 1991, writ denied).

[170] Albright, 859 S.W.2d at 578; Poncar v. City of Mission, 797 S.W.2d 236, 240 (Tex.App.--Corpus Christi 1990, no writ).

[171] Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985); Jaime, 853 S.W.2d at 607.

[172] Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex.1992); Bill De La Garza & Assocs., P.C. v. Dean & Ongert, 851 S.W.2d 371, 373 (Tex.App.--Houston [1st Dist.] 1993, no writ).

[173] Travis, 830 S.W.2d at 99-100; Universal Savings Ass'n v. Killeen Savings & Loan Ass'n, 757 S.W.2d 72, 75 (Tex.App.--Houston [1st Dist.] 1988, no writ); see Manoogian v. Lake Forest Corp., 652 S.W.2d 816, 819 (Tex.App.--Austin 1983, writ ref'd n.r.e.).

[174] City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

[175] Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Jaime, 853 S.W.2d at 608.

[190] Tarrant County v. Ashmore, 635 S.W.2d 417, 420 (Tex.) (quoting Kimbrough v. Barnett, 93 Tex. 301, 310, 55 S.W. 120, 122 (1900)), cert. denied, 459 U.S. 1038, 103 S.Ct. 452, 74 L.Ed.2d 606 (1982); Ruiz v. State, 540 S.W.2d 809, 812 (Tex.Civ.App.--Corpus Christi 1976, no writ).

[194] Id. at 422 (quoting Sutton v. Adams, 180 Ga. 48, 178 S.E. 365, 375 (1934)).

[195] Aldine Indep. Sch. Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex.Civ.App.--Galveston 1949, writ ref'd n.r.e.)); Ruiz, 540 S.W.2d at 811.

[207] Compare to a judge who delegates official duties to (1) the judge's staff, (2) the judge's secretary, or (3) the local bar association. See Discussion.

[209] See id. (quoting Navarro County v. Tullos, 237 S.W. 982, 986 (Tex.Civ.App.--Dallas 1922, writ ref'd n.r.e.)).

[210] See Op. Tex. Att'y Gen. No. JM-911 (1988) (citing Op. Tex. Att'y Gen. No. O-5049 (1943)).

[213] Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Tarrant County, 635 S.W.2d at 422.

[214] Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir.1995); see West v. Atkins, 487 U.S. 42, 46-48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988).

[215] Rains County I.S.D., 66 F.3d at 1411; see Polk County v. Dodson, 454 U.S. 312, 318-20, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 (1981).

[216] Rains County I.S.D., 66 F.3d at 1411 (quoting Polk County, 454 U.S. at 317-18, 102 S.Ct. at 449).

[225] Garza v. Morales, 923 S.W.2d 800, 802 (Tex.App.--Corpus Christi 1996, n.w.h.); Spencer v. City of Seagoville, 700 S.W.2d 953, 957-58 (Tex.App.--Dallas 1985, no writ); Morris v. Nowotny, 323 S.W.2d 301, 304 (Tex.Civ.App.--Austin, writ ref'd n.r.e.), cert. denied, 361 U.S. 889, 80 S.Ct. 164, 4 L.Ed.2d 124 (1959).

[226] The court mistakes Forrester by limiting it to "civil rights actions." It applies generally to judicial immunity. It is not limited to civil rights cases.

[227] Forrester v. White, 484 U.S. 219, 228-30, 108 S.Ct. 538, 544-46, 98 L.Ed.2d 555 (1988).

[229] Note that a judge might have other defenses, including another kind of immunity, even if the judge does not have judicial immunity.

[230] Garza v. Smith, 860 S.W.2d 631, 633 (Tex.App.--Corpus Christi 1993, no writ); Eakle v. Texas Dep't of Human Serv., 815 S.W.2d 869, 875 (Tex.App.--Austin 1991, writ denied); Russell v. Texas Dep't of Human Resources, 746 S.W.2d 510, 513 (Tex.App.--Texarkana 1988, writ denied).

[231] These are not covered by this course. Note that "quasi-judicial immunity" is not judicial immunity.

[232] Garza, 860 S.W.2d at 633; see City of Houston v. Kilburn, 849 S.W.2d 810, 812 n. 1 (Tex.1993).Garza, 860 S.W.2d at 633; see City of Houston v. Kilburn, 849 S.W.2d 810, 812 n. 1 (Tex.1993).

[234] The inappropriate use of the word "judicial" can yield odd results. Here judges, who lack judicial immunity must prove that they had a "quasi-judicial" function. Better terminology would reduce confusion.

[236] Gallia v. Schreiber, 907 S.W.2d 864, 869 (Tex.App.--Houston [1st Dist.] 1995, no writ); see City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex.1994).

[241] Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961); Delcourt v. Silverman, 919 S.W.2d 777, 781 (Tex. App.-Houston [14th Dist.] 1996, writ denied); TEX. CIV. PRAC. & REM. CODE § 101.053(a).Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961); Delcourt v. Silverman, 919 S.W.2d 777, 781 (Tex. App.-Houston [14th Dist.] 1996, writ denied); TEX. CIV. PRAC. & REM. CODE § 101.053(a).

[244] See Broadway Open Air Theatre, Inc. v. United States, 208 F.2d 257, 259 (4th Cir.1953); United States v. Banner, 226 F. Supp. 904, 905 (N.D. N.Y. 1963); Paige v. Dillon, 217 F. Supp. 18, 20 (S.D. N.Y. 1963).

[248] Turner v. Pruitt, 161 Tex. 532, 534-35, 342 S.W.2d 422, 423 (1961); Delcourt v. Silverman, 919 S.W.2d 777, 781-82 (Tex. App.--Houston [14th Dist.] 1996, writ denied); Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir. 1989).

[251] Byrd v. Woodruff, 891 S.W.2d 689, 707 (Tex. App.--Dallas 1994, writ dism'd by agr.).

[255] See Delcourt, 919 S.W.2d at 782 (citing Gardner v. Parson, 874 F.2d 131, 145-46 (3d Cir. 1989); Hodorowski v. Ray, 844 F.2d 1210, 1213-15 (5th Cir. 1988); Meyers v. Contra Costa County Dep't of Soc. Serv., 812 F.2d 1154, 1157 (9th Cir. 1987); Malachowski v. City of Keene, 787 F.2d 704, 712 (1st Cir. 1986)).

[256] Delcourt, 919 S.W.2d at 782 (citing Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)).

[262] See State v. Creel, 895 S.W.2d 899, 900 (Tex. App.--Waco 1995, orig. proceeding); City of Ingleside v. Johnson, 537 S.W.2d 145, 150 (Tex. App.--Corpus Christi 1976, orig. proceeding).

[266] See Tex. R. App. P. Appendix "Court of Criminal Appeals Order Directing the Form of the Appellate Record in Criminal Cases."

[267] Tex. R. App. P. 35.3(c); see also In re Ryan, 993 S.W.2d 294, 298 (Tex. App.--San Antonio 1999, no pet.) (holding reporter in criminal contempt).

[268] See Tex. R. App. P. Appendix "Court of Criminal Appeals Order Directing the Form of the Appellate Record in Criminal Cases."

[269] Yeager Elec. & Plumbing Co. v. Ingleside Cove Lumber & Builders, Inc., 526 S.W.2d 738, 742 (Tex.Civ.App.--Corpus Christi 1975, no writ.).

[270] See Perry v. Texas A & I Univ., 737 S.W.2d 106, 110 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.).

[271] Hays Consol. Indep. School Dist. v. Valero Transmission Co., 645 S.W.2d 542, 546 (Tex.App.--Austin 1982, writ ref'd n.r.e.).

[273] Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

[275] Footnote 3 by the court. The predecessor of section 142.001(a) provided in part that:

Minors ... who have no legal guardian may sue and be represented by "next friend" under the following rules: ... (2) The judge of the court in which the judgment is rendered upon an application and hearing, ... may provide for an investment of the funds accruing under such judgment.

Tex.Rev.Civ.Stat. art. 1994. Thus, in addition to the express language of section 142.001(a) of the Texas Property Code limiting its application to cases in which the minor is represented by next friend, the statute's history indicates that the legislature intended such a construction. See Tex.Prop.Code § 1.001 (the prior statutes, such as art. 1994, were codified without substantive change); see also Tex.Prop.Code 142.005(a) (a trust may be established for a minor represented by a next friend or an appointed guardian ad litem, upon application by either of them and finding that it would be in the best interests of the minor).

[279] See City of Houston v. Kilburn, 849 S.W.2d 810, 811-12 (Tex.1993) (per curiam); Cameron County v. Alvarado, 900 S.W.2d 874, 878 (Tex.App.--Corpus Christi 1995, writ dism'd w.o.j.); Village of Bayou Vista v. Glaskox, 899 S.W.2d 826, 828-30 (Tex.App.--Houston [14th Dist.] 1995, no writ).

[280] See Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961); Bradt v. West, 892 S.W.2d 56, 66 (Tex.App.--Houston [1st Dist.] 1994, writ denied); Spencer v. City of Seagoville, 700 S.W.2d 953, 957-58 (Tex.App.--Dallas 1985, no writ).

[281] McDuffie v. Blassingame, 883 S.W.2d 329, 334 (Tex.App.--Amarillo 1994, writ denied); Spencer, 700 S.W.2d at 957-58.

[282] Again a court cites dicta citing dicta citing dicta, without identifying it as dicta. See discussion McDuffie and Spencer.

[283] Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Bradt, 892 S.W.2d at 69; Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 143 (Tex.App.--Corpus Christi 1986, writ denied).

[284] Bradt, 892 S.W.2d at 67; see also McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972).

[286] This is an interesting statement, given that Judge West did not have authority to take the action involved in Bradt.

[287] James v. Brown, 637 S.W.2d 914, 916 (Tex.1982); Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942); Glaskox, 899 S.W.2d at 828-29; Jacobs, 736 S.W.2d at 143.

[289] Hill v. Herald-Post Pub. Co., 877 S.W.2d 774, 782 (Tex.App.--El Paso), rev'd on other grounds, 891 S.W.2d 638 (Tex.1994).

[290] See Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir.1994) (criticism of court employee in courtroom); Partington v. Gedan, 961 F.2d 852, 866 (9th Cir.1992) (letter to attorney concerning disciplinary proceeding which contained erroneous information); Sun v. Forrester, 939 F.2d 924, 925 (11th Cir.1991) (derogatory comments made to criminal defendant at sentencing); see also 48A C.J.S. Judges § 89 (immunity includes defamatory statements uttered in the course of performing judicial duties).