law-judicial-immunity

law-judicial immunity | derived judicial immunity | judicial-proceedings-privilege immunity

JUDICIAL IMMUNITY OF JUDGES, JUDICIAL OFFICERS, DERIVED JUDICIAL
IMMUNITY

derived judicial immunity provides broad protection. "Once an individual is cloaked with derived judicial
immunity because of a particular function being performed for a court, every action taken with regard to that
function—whether good or bad, honest or dishonest, well-intentioned or not—is immune from suit. Once
applied to the function, the cloak of immunity covers all acts, both good and bad." Ramirez v. Burnside &
Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 Tex. App. LEXIS 6065, at *5 (Tex. App.-San Antonio Aug. 3,
2005, no pet.) (mem. op.) (citing B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.-Houston [14th Dist.] 2003, no
pet.)). REHABWORKS, LLC v. Flanagan, Tex: Court of Appeals, 3rd Dist., Austin 2009

HOUSTON CASELAW ON DERIVED JUDICIAL IMMUNITY

A person entitled to derived judicial immunity receives the same absolute immunity from liability for
acts performed within the scope of his jurisdiction as a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554
(Tex. 2002).

Judicial immunity can attach to certain non-judges because the policy reasons for judicial immunity--protection
of individual judges and of the public's interest in an independent judiciary--are also implicated when judges
delegate their authority, appoint another to perform services for the court, or allow another to otherwise serve
as an officer of the court. Id. In those circumstances, the immunity attaching to the judge follows the
delegation, appointment, or court employment. Id. The person acting in such a capacity thus also enjoys
absolute immunity, which is known as derived judicial immunity. Id.

Texas uses a "functional approach" to determine whether someone is entitled to derived judicial immunity. Id.
at 556-57. The "functional approach looks to whether the person seeking immunity is intimately associated
with the judicial process" and whether "that person exercises discretionary judgment comparable to that of the
judge." Id. at 554 (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex. App.--Houston [14th Dist.] 1996,
writ denied)). The functional approach focuses on the nature of the function performed, not the identity of the
actor, and considers whether the court officer's conduct is like that of the delegating or appointing judge. Id.
at 555.

Radoff contends that, as a court-appointed receiver acting within the scope of his authority, he is entitled to
derived judicial immunity. We agree. "Like a court-appointed bankruptcy trustee acting within his authority as
trustee, a court-appointed receiver acts as an arm of the court and is immune from liability for actions
grounded in his conduct as receiver." Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207
(Tex. App.--Austin 2009, pet. denied) (mem. op) (citing Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992)
(court-appointed bankruptcy trustees acting within scope of authority entitled to derived judicial immunity);
Alpert v. Gerstner, 232 S.W.3d 117, 130-31 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (court-
appointed receiver entitled to derived judicial immunity for all acts authorized by court, but not for breach of
fiduciary duties); Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App.--Waco 2002, no pet.) (characterizing
court-appointed receiver as agent of court)).

"Once an individual is cloaked with derived judicial immunity because of a particular function being performed
for a court, every action taken with regard to that function--whether good or bad, honest or dishonest, well-
intentioned or not--is immune from suit. Once applied to the function, the cloak of immunity covers all acts,
both good and bad." Id. (citing Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 WL
1812595 (Tex. App.--San Antonio Aug. 3, 2005, no pet.) (mem. op.)).

Here, the turnover order was issued by a Harris County justice court. It recited that "whereupon the Court's
review of the papers herein on file, [the Court] became of the opinion that [Houston Reporting] holds and is
entitled to collect upon a true, final, valid and subsisting judgment against Defendant-in-Judgment, VERONICA
L. DAVIS . . . ." The Court accordingly ordered that

HENRY RADOFF, . . . be and is hereby appointed Receiver to serve after posting bond in the sum of $100
and taking the oath of office , in this case pursuant to the Texas Turnover Statute, with all the power and
authority to take possession of all non-exempt property of Respondent VERONICA L. DAVIS, that is in the
actual or constructive possession or control of Respondent VERONICA L. DAVIS, including but not limited to
all property incidental to or associated with the daily operation of Respondent VERONICA L. DAVIS . . .
including but not limited to all cash, . . . drafts and checks, monies on deposit in financial institutions, financial
accounts (bank accounts), certificates of deposit, money market accounts, accounts held by any third party, .
. . that is in the actual or constructive possession of Respondent VERONICA L. DAVIS; and to pay the
proceeds to the Receiver to the extent required to satisfy said judgment, but not to exceed the full amount
awarded under the judgment (or balance due if the judgment has been partially satisfied) which amount
includes principal, attorney's fees and prejudgment interest, together with postjudgment interest and costs
and the amount of attorney's fees awarded herein; . . .

On appeal, Davis complains that Radoff took actions violating the turnover order. Specifically, Davis alleges
that the order does not allow Radoff to seize property from the Bank but that he instead only may receive
property from Davis, that he must act in tandem with the constable or sheriff, and that he was required to hold
a hearing to determine the amount of money Davis needed to live on and to provide for her dependents.
Davis also appears to allege that Radoff seized exempt assets and that he improperly seized her assets
without providing a certified copy of the turnover order to the Bank.

However, as set out above, the turnover order in this case is extremely broad. The order granted Radoff the
explicit power to perform the acts that form the basis of Davis's complaints--to locate and take control of any
cash she had deposited in bank accounts and to use that money to satisfy the underlying default judgment
against her. Davis's petition does not allege any acts by Radoff except those performed in his capacity as
receiver, and those acts are within the bounds of the turnover order.

Davis's argument regarding Texas Civil Practice and Remedies Code section 64.052 is also unsuccessful.
Section 64.052 allows suits against receivers "in their official capacity" to be brought in a court of competent
jurisdiction without permission of the appointing court. Tex. Civ. Prac. & Rem. Code Ann. § 64.052 (Vernon
2008). It is, in essence, a venue provision that has "the effect of making receivers subject to the general
venue statute and thereby served the convenience of the public by abolishing the common-law rule that only
the court appointing the receivers should have jurisdiction and venue on suits brought against the receiver."
Carson v. Hilley, 484 S.W.2d 457, 460 (Tex. App.--Fort Worth 1972, no writ). Section 64.052 does not enlarge
or restrict the causes of action that may be asserted against a receiver, nor does it abrogate a receiver's
derived judicial immunity for acts taken within the scope of his receivership. See, e.g., Rehabworks, LLC v.
Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex. App.--Austin 2009, pet. denied) ("We have already
concluded that derived judicial immunity shields a court-appointed receiver from suit in this case, where the
receiver acts as an arm of the court and the suit is based on actions taken within the scope of the receiver's
authority.").
Accordingly, we conclude that the trial court properly granted summary judgment on Radoff's motion for
summary judgment as a matter of law on his defense of derived judicial immunity.
Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity) (turnover relief,
void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment hearing)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-01006-CV Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May

Bosch v. Armstrong (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings)
(suit barred by judicial communications tort immunity, absolute privilege for communications in legal court
proceeding, sanctions for baseless claim)
AFFIRM TC JUDGMENT:
Before Justices Jennings, Alcala and Higley. Opinion by Justice Jennings
01-08-00847-CV
Yigal Bosch v. Mark S. Armstrong and Paul Bailiff and Squire, Sanders & Dempsey L.L.C.
Appeal from 280th District Court of Harris County
Trial Court Judge: The Honorable Tony Lindsay

TEXAS CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | HO USTON COURTS OF APPEALS |
TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE