Texas Judicial Immunity #2

YouKnowItAll.com

© A. Hawkins 2004

Course #2

This course is split into parts that are presented as two courses for convenience. Courses #1 and #2 combine to constitute one course, so it is written as one course, with the assumption that you will take both #1 and #2. This is Course #2. The table of contents, and procedural and introductory material, are in Course #1. Course #1 should be taken before this course.

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Texas District Court Employment and Political Decisions.

Guerrero v. Refugio County 946 S.W.2d 558 (Tex.Civ.App.-Corpus Christi 1997)

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[1] A county auditor serves a two-year term.[2] 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.[3] An employment relationship must exist between appellant and the judges.[4] We, therefore, look again to the hybrid economic realities/common law control test for guidance in determining whether such a relationship exists.[5]

“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.[6] Pursuant to state law, district judges must appoint a county auditor when the need for such a function arises.[7] The judges also decide whether the county auditor is entitled to assistant auditors and approve the persons appointed to those positions.[8] 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.[9] 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.[10] 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.[11] The auditor’s supplies are provided at the county’s expense.[12] By law, the county auditor adopts and enforces the regulations necessary for a proper accounting system in the county.[13] 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.[14] 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.”[15] Public office can be properly described in terms of trust, duty, and public benefit, rather than contract, employment, ownership, or possession.[16] Stated briefly, public office should be viewed not as a right, but a responsibility.[17] 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.[18] ‘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[.]’[19]

“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.”[20] 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.[21] In addition, an officer will be required by law to take an oath of office and to give a bond.[22]

“In the instant case, Guerrero held an appointed position with a statutorily prescribed term of two years.[23] 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.[24] Statutory qualifications exist for the position, and the person appointed must take an oath of office as well as give a bond.[25]

“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.[26]

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.[27]

3) must countersign a check or warrant to validate it as a proper and budgeted item of expenditure.[28]

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.[29]

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.[30] and

6) shall see to the strict enforcement of the law governing county finances.[31]

“As county auditor, Guerrero could not delegate these official duties[32] to another, other than to duly appointed assistants.[33] Nor could he be compelled to delegate these duties.[34]

“When acting as county auditor, Guerrero was not subject to the orders of the commissioners court.[35] As county auditor, Guerrero had broad powers to oversee county finances and prescribe systems for the accountability of county funds.[36] The independent nature of Guerrero’s position was assured by placing the power of appointment and dismissal in the hands of the district judges.[37]

“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.[38]

“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.

“Political Discrimination

“A. The County Judge

“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, 1993 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.[39] 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.[40] 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.’ ”[41] 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.[42]

“The county commissioners court, with the county judge as presiding officer, exercises power and jurisdiction over all county business, as prescribed by state law.[43] Maintaining finance records and examining accounting records of the county are among the functions of the commissioners court.[44] 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.[45] This audit can include the office of the county auditor.[46]

“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, 1993 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.

B. The District Judges

“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.[47] Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court.[48] 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.[49]

“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.[50]

“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.[51][52] In Forrester, the Court held that the termination of a probation officer by a judge was an administrative act, and not a judicial act.[53] 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.[54][55] This immunity is known as qualified, official, quasi-judicial, or good faith immunity.[56][57] 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.[58] To prevail, the district judges had to establish: 1) that their positions had quasi-judicial[59] status, 2) that they were acting within their authority, and 3) that they were acting in good faith.[60]

“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.[61]

“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.[62] 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.[63] 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.[64]

“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)

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Judicial immunity does not attach to a city charging illegal fees for warrants.

Kubosh v. City of Houston, 2 S.W.3d 463 (Tex.App.-Houston [1st Dist.] 1999)

Issues: Is the act a judicial function?

“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.

“FACTUAL AND PROCEDURAL HISTORY

“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. . . .[65]

“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 trial court denied the appellants’ motion and granted the City’s.

“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.[66] 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.[67]

“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. . . .’.[68] 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.[69] 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,[70] 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.[71]

“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.

“We hold the trial court erred in rendering summary judgment for the City.”

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Affirmative Defense Pleading and Proof

Villarreal v. Martinez 834 S.W.2d 450 (Tex.App.-Corpus Christi 1992)

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. [72] Immunities are affirmative defenses.[73] They open a way to establish independent reasons why the plaintiff should not recover, even if the facts alleged in the petition are correct.[74] Affirmative defenses are matters of avoidance and must be proven at the trial of the case.[75] 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.[76] 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.[77] 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.

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Ledbetter v. Ramsey (Tex. App. - Ft. Worth 2003)

Issues: This case and decision are peculiar for various reasons. The issue which is relevant to this course may be a misstatement of the issue by the Justice Gardner. The case seems to be about liability for words spoken in a mental health proceeding. That is not a judicial immunity case. This is a memorandum decision with a concurrence and a dissent. “Judicial immunity” is mentioned in Justice Gardner’s concurrence. She may have intended to say “immunity for communication in a judicial proceeding,” but she said “judicial immunity.” It is tempting to ignore this statement, or to suggest that it is nuts, but to make this course complete we include it with the suggestion that it not be relied upon. For context, we include a portion of the opinion of the court along with the reference to “judicial immunity” in the concurrence.

MEMORANDUM OPINION(1) [by Justice Holman]

In October 1998, Appellees instituted a mental health code proceeding in Denton County, under which the court involuntarily committed Appellant to the Wichita Falls State Hospital from October 29, 1998 until November 23, 1998. At the proceeding, Appellees testified as to the state of Appellant's mental health. Appellant later sued Appellees in Dallas County for their participation in the proceeding, alleging negligence, defamation, false imprisonment, invasion of privacy, and intentional infliction of emotional distress. . . .

The law is well settled that communications in the course of judicial proceedings are absolutely privileged and cannot serve as the basis of a lawsuit in tort, regardless of the negligence or the malice with which they are made.[78] This absolute privilege is a rule of nonliability and applies even though the statements are not relevant, pertinent, or material to the issues involved in the case in which they were uttered.[79] Although most cases addressing the judicial communication privilege involve claims of libel or slander, Texas courts have applied the privilege to claims arising out of communications made in the course of judicial proceedings, regardless of the label placed upon the claim.[80]

Appellant's lawsuit against Appellees arose out of their institution of and communication of evidence at the mental health proceeding, which was a judicial proceeding. Accordingly, the trial court did not abuse its discretion in dismissing the case.[81]

. . . We affirm the trial court's judgment.

Concurring opinion of Justice Anne Gardner

Appellant further complains that Appellees never raised judicial immunity in their motion to dismiss and that the dismissal thus cannot be upheld on that ground. It appears that Appellant is essentially arguing that judicial immunity is an affirmative defense that is waived because it was not pleaded or expressly raised by Appellees. However, when, as in this case, the plaintiff's pleadings and own evidence show that an alleged defamatory statement was made in the course of a judicial or quasi-judicial proceeding, the defendant is relieved of the burden of raising that defense and no action lies as a matter of law.[82]

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Judicial immunity is a reason that a judge should not act.

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

McGough v. First Court of Appeals, 842 S.W.2d 637 (Tex. 1992) (per curium)

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.[83] 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).