Stephen Hartman v. Anthony Barker

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00052-CV
__________________

STEPHEN HARTMAN, Appellant

V.

ANTHONY BARKER, ET AL, Appellees
__________________________________________________________________

On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-198,246
__________________________________________________________________

MEMORANDUM OPINION

In nine issues before the Court, Stephen Hartman appeals the trial court’s

granting of Anthony Barker, Stephen Carr, Kim Carter, Misty Craver, Tiffani

Decuir, Chad Kolander, Ann Landry, Sharon Bill-Williams, Tom Maness, Tom

Rugg, Ed Shettle, Tim Smith, E. Perry Thomas, Clint Woods, Mitch Woods, Tish

Jones, and Jodee Roach’s (“Jefferson County Employees”) plea to the jurisdiction,

motion for summary judgment, and motion to dismiss under the Texas Tort Claims

1
Act (TTCA) sections 101.106(a), (e), and (f). See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.106. Hartman argues that the TTCA’s election of remedies does not bar his

lawsuit and the Jefferson County Employees are not entitled to witness immunity

and prosecutorial immunity. We affirm.1

I. Background

The background facts of this case have been discussed in this Court’s prior

opinions; therefore, we will only discuss the facts necessary for our review of this

case. See Walker v. Hartman, 516 S.W.3d 71 (Tex. App.—Beaumont 2017, pet.

denied); Hartman v. Estate of Alford, No. 09-19-00051-CV, 2019 WL 4493329

(Tex. App.—Beaumont Sept. 19, 2019, pet. denied) (mem. op.); Hartman v.

Broussard, No. 09-19-00053-CV, 2020 WL 578795 (Tex. App.—Beaumont Feb. 6,

2020, no pet. h.) (mem. op.). On May 28, 2013, Hartman attempted to serve Judge

Layne Walker of the 252nd District Court in Jefferson County with federal process

papers.2 Walker was on the bench and working the court’s docket as Hartman sat in

the gallery of the courtroom. Hartman stated that after waiting for almost an hour,

he quietly approached the bar of the courtroom and spoke to the bailiff about serving

1
Jefferson County Employees filed a cross appeal but subsequently notified
this Court that they are dismissing their cross appeal.
2
Hartman had previously attempted to serve Walker at his residence, which
resulted in an altercation between the two, according to Hartman.
2
Walker with process papers. After speaking to the bailiff, Hartman said that he was

attacked by another bailiff and arrested. Hartman asserted that he was not disruptive

and that he did not intend to serve Walker while he was on the bench. Hartman was

placed in a holding cell within the courtroom and not told of his charges until he was

transferred to the Jefferson County Jail that evening. Hartman was eventually

allowed to serve Walker in the jury room.

After his arrest, Hartman’s belongings, including his cell phone and a

recording device, were confiscated. Hartman asserted that Walker’s bailiff illegally

accessed the recording device and downloaded a copy of its contents with the help

of the bailiff’s wife. Hartman stated that Walker, the courtroom bailiffs, Walker’s

courtroom staff, and Sheriff’s Department employees illegally viewed the contents

of the recording device. Hartman alleged that Walker, along with employees of the

Jefferson County District Attorney’s office and Sheriff’s Department employees,

perpetuated a conspiracy in “covering up all these illegalities” by demanding

falsified witness affidavits from those present in the courtroom during Hartman’s

arrest, including “instructing the Sherriff Deputies to prepare falsified arrest reports

and probable cause affidavits.” Hartman complained that Walker, the District

Attorney’s Office, and the Sherriff’s Department knew of the falsified, perjured

affidavits and probable cause arrest reports, but still proceeded with an illegal

3
prosecution against Hartman. According to Hartman, the Jefferson County

Employees acted in a “civil conspiracy to perpetuate the Texas torts . . . through

collective misconduct with a unity of purpose and goals, in order to damage

Hartman.”3

Hartman filed a federal lawsuit against Walker, the bailiffs, Sheriff’s

Department employees, and the individuals who witnessed and provided affidavits

about Hartman’s arrest. In his federal lawsuit, Hartman asserted § 1983 claims

against both Jefferson County and the individuals named in his lawsuit, and “against

all Defendants . . . for numerous pendent state law claims.” In his second amended

federal lawsuit, Hartman alleged Texas tort claims against the defendants in their

individual capacity. In response, Jefferson County filed a Motion for Dismissal

pursuant to section 101.106 of the TTCA and an Amended 12(b)(6) Motion to

Dismiss. Hartman’s federal lawsuits were ultimately dismissed. Hartman then filed

lawsuits in State court arguing Texas tort claims against Walker, the bailiffs,

Sheriff’s Department employees, Walker’s courtroom staff, employees of the

District Attorney’s Office, and the individuals who signed the affidavits.

3
Hartman was charged with a “Class B misdemeanor of Hindering [a]
Proceeding by Disorderly Conduct.” See Tex. Penal Code. Ann. § 38.13. His charges
were dismissed.
4
 Jefferson County Employees filed a Plea to the Jurisdiction and/or Motion to

Dismiss arguing that under the TTCA, Hartman elected to sue the county in Federal

Court and is therefore barred from pursuing any claims regarding tortious action

against the individual Jefferson County Employees. In their plea to the jurisdiction,

the Jefferson County Employees noted:

In [Hartman’s] Second Amended Complaint, he brought a tort suit
against the County and brought tort claims against County
Employees[.]. . . As such, [Hartman] has exercised his irrevocable
election to sue the County for his Texas tort claims and this suit against
the County Employees must be dismissed. . . . In response to the
County’s Amended Motion to Dismiss [Hartman’s] Second Amended
Complaint filed in the Federal Court proceeding, [Hartman] falsely
claimed that he had only sued the individual employees, not the County,
for any state law torts. Above, the County Employees have extensively
quoted [Hartman’s] Second Amended Petition wherein it is clear that
[Hartman] did, in fact, bring state law tort claims against the County in
his Second Amended Complaint. Either way, § 101.106(a), (e) and (f)
bar [Hartman’s] suit against the County Employees. Tex. Civ. Prac. &
Rem. Code §§ 101.106(a), (e) and (f).

Hartman answered, arguing that he only sued Jefferson County under § 1983

in his federal lawsuit and not under the TTCA and that he sued Jefferson County

Employees “in their individual capacities” for Texas torts. Hartman opposed the

Jefferson County Employees’ Plea to the Jurisdiction and/or Motion to Dismiss.

After a hearing, the trial court granted Jefferson County Employees’ motion and

dismissed Hartman’s claims against them with prejudice. The trial court ordered that

“[t]he Jefferson County Employees’ Motion is GRANTED on Texas Tort Claims
5
Act, witness immunity, and prosecutorial immunity[.]” The trial court then signed a

separate order denying Hartman’s motion for continuance. Hartman timely filed this

interlocutory appeal.

II. Standard of Review

Section 51.014 of the Texas Civil Practice and Remedies Code gives us

jurisdiction over this interlocutory appeal of the trial court’s order granting the

Jefferson County Employees’ plea to the jurisdiction. See Tex. Civ. Prac & Rem.

Code Ann. § 51.014(a)(8); see also Lenoir v. Marino, 469 S.W.3d 669, 673 n.2 (Tex.

App.—Houston [1st Dist.] 2015) (op. on reh’g), aff’d, 526 S.W.3d 403 (Tex. 2017).

“A plea questioning the trial court’s jurisdiction raises a question of law that we

review de novo.” State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) (citing Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

III. Analysis

A. TTCA Election of Remedies

The TTCA provides for an election of remedies that forces a plaintiff at the

outset of his lawsuit to determine whether to sue a government employee in their

individual capacity or to sue the governmental employer. See Tex. Civ. Prac. & Rem.

Code Ann. § 101.106(a); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 657 (Tex. 2008). Once the Plaintiff makes this election, the TTCA

6
“immediately and forever” bars the plaintiff from suing the other in the same

capacity. Molina v. Alvarado, 463 S.W.3d 867, 870 (Tex. 2015) (citing Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(a)–(b)).

This [election of remedies] provision was incorporated into the TTCA
to prevent plaintiffs from circumventing the TTCA’s damages cap by
suing government employees, who were, at that time, not protected. It
was expanded in 2003, as part of a comprehensive effort to reform the
tort system, with the apparent purpose of forcing a plaintiff “to decide
at the outset whether an employee acted independently and is thus
solely liable, or acted within the general scope of his or her
employment, such that the governmental unit is vicariously liable.”

Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 846 (Tex. 2018) (citations

omitted). The Texas Supreme Court has warned litigants to “proceed cautiously”

before initiating suit under the TTCA because the election has “irrevocable

consequences.” Garcia, 253 S.W.3d at 657. While generally Texas Rule of Civil

Procedure 65 provides that any subsequent amended pleadings supersede the

original filing, we defer to the statute if a statute provides contradictory language.

Univ. of Tex. Health Sci. Ctr. of Hous. v. Rios, 542 S.W.3d 530, 538 (Tex. 2017);

see also Tex. R. Civ. P. 65. Section 101.106(a) of the TTCA provides, “The filing

of a suit under this chapter against a governmental unit constitutes an irrevocable

election by the plaintiff and immediately and forever bars any suit or recovery by

the plaintiff against any individual employee of the governmental unit regarding the

same subject matter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). The statute
7
specifically states that an election occurs when the government employer is sued and

bars recovery against an individual employee of the governmental unit. See id. Our

sister court in Houston explained that

[s]ection 101.106(a) refers to “[t]he filing of a suit under this chapter
against a governmental unit;” it does not refer to the numerical
designation in the caption of the pleading by which a plaintiff has filed
suit against a governmental unit. The dispositive election occurs when
the governmental employer is sued—regardless of whether the
governmental employer is sued alone or in tandem with the employee,
and regardless of whether the governmental employer is sued in the
“original” petition or an “amended” petition.

Hintz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied).4 Any subsequent pleadings cannot avoid the plaintiff's irrevocable election

to sue the governmental entity employer. See Rios, 542 S.W.3d at 538–39; see also

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a).5 Therefore, in determining the

4
Hartman argues in this brief that Hintz supports his argument that TTCA’s
election of remedies “occurs in the first state court petition.” We are unpersuaded by
his argument as it directly contradicts the language of that opinion. See Hintz v. Lally,
305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
5
We examine Hartman’s federal pleadings because as noted by the Texas
Supreme Court in Univ. of Tex. Health Sci. Ctr. of Hous. v. Rios, it is the filing of
the government’s motion to dismiss, not its content, that triggers the right to
dismissal. 542 S.W.3d 530, 538 (Tex. 2017). When Jefferson County filed a motion
to dismiss in Hartman’s federal lawsuit, that motion triggered section 101.106’s
election of remedies and section 101.106’s application. Tex. Civ. Prac. & Rem. Code
Ann. § 101.106; see also Stinson v. Fontenot, 435 S.W.3d 793, 794 (Tex. 2014)
(affirming the court of appeals holding that Stinson’s suit against the County in
federal court entitled Fontenot to dismissal of the claims against him individually in
the state court suit under the provisions of the TTCA).
8
applicability of section 101.106(a), we examine the pleadings, which are not

confined to his original petition, to determine when the Plaintiff first asserted

allegations against the governmental unit prompting the government to file a motion

to dismiss under the TTCA. See Rios, 542 S.W.3d at 538.

In his second amended complaint filed in the federal lawsuit, Hartman added

Jefferson County (including Jefferson County employees not named in the original

federal lawsuit) as a defendant and pleaded the following language:

Hartman’s Texas tort causes of action are set forth in this Complaint,
and all incorporated into this section. The intentionally tortious
misconduct of each and all of the individual Defendants also constitute
negligence per se and gross negligence per se against Hartman[.] All
the individual Defendants[’] tortious misconduct proximately caused
Hartman actual and compensatory damages. Hartman seeks to recover
from each and every individual Defendant his compensatory or actual
damages proximately caused by the individual Defendants’ Texas
torts[.]

[...]

Hartman’s tort claim for intentional infliction of emotional distress by
all the individual Defendants is not a “gap-filler” tort in this case. All
the Defendants’ misconduct was truly extreme, outrageous, in open and
notorious violation of law and the U.S. Constitution, and were all
perpetrated for the specific purpose to cause Hartman severe emotional
trauma[.]

Hartman’s decision to sue both the Jefferson County Employees individually and

their employer, Jefferson County, triggered subsection (a)’s election of remedies.

“[S]ubsection (a) bars suit against an employee in his individual capacity.” Stinson
9
v. Fontenot, 435 S.W.3d 793, 794 (Tex. 2014) (citation omitted). “[U]nder

subsection (a), suit against a governmental unit under the TTCA—i.e., filing a tort

claim against the governmental unit—bars suit against an ‘individual employee’ of

the unit regarding the same subject matter, regardless of whether immunity has been

waived.” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 357 n.7 (Tex.

2013) (citations omitted). The Texas Supreme Court explained that “[t]he plain

language of the election-of-remedies provision, then, demonstrates that a suit against

the government triggers subsection (a)” and will bar a suit against an employee in

his individual, rather than official, capacity. See Alexander v. Walker, 435 S.W.3d

789, 791 (Tex. 2014) (citation omitted). Accordingly, subsection (a)’s applicability

hinges on whether the suit is against the government employee in his individual or

official capacity. See id.

Hartman argues that subsection (a) of the election of remedies provision does

not bar the current claims against Jefferson County Employees because in his

original federal court complaint, Hartman sued the County for constitutional

violations under 42 U.S.C. § 1983. Hartman’s Original Complaint filed in federal

court alleged claims against the governmental employee defendants individually for

state torts that were beyond the course and scope of their employment. Hartman

makes the distinction that the original federal complaint did not assert claims against

10
Jefferson County for torts. The whole of Hartman’s appeal rests on his contention

that the causes of action asserted in his Second Amended Complaint in the federal

suit are irrelevant to and did not trigger the election of remedies provision of TTCA

§ 101.106(a), because a plaintiff’s election of remedies occurs when a plaintiff

initially files suit and is not affected by any subsequent amendments to those

pleadings. In the alternative, Hartman also attempts to argue that although he did not

sue Jefferson County for torts in his original federal complaint, any analysis is

irrelevant because the TTCA is not triggered by the federal complaint. However,

both assertions are incorrect. His decision to sue the government and its employees

in their individual capacity for alleged tortious conduct in the second amended

federal complaint triggered section 101.106(a)’s mandatory dismissal of the

individual defendants. This election is irrevocable, and he is barred under section

101.106(a) from proceeding against the individual employees in their individual

capacities.6 Jefferson County Employees are entitled to dismissal under section

6
The Supreme Court stated in Mission Consol. Indep. Sch. Dist. v. Garcia
that
[u]nder the Tort Claims Act’s election scheme, recovery against an
individual employee is barred and may be sought against the
governmental unit only in three instances: (1) when suit is filed against
the governmental unit only, [Tex. Civ. Prac. & Rem. Code Ann.] §
101.106(a); (2) when suit is filed against both the governmental unit
and its employee, [Tex. Civ. Prac. & Rem. Code Ann.] § 101.106(e);
or (3) when suit is filed against an employee whose conduct was within
11
101.106(a). “In short, section 101.106’s door swings in just one direction.” Hintz,

305 S.W.3d at 769. “This one-way door comports with the legislature’s goal to

address efforts to circumvent the Tort Claims Act’s limits by litigants who sued

governmental employees individually instead of their governmental employers.” Id.

(citation omitted); see Lenoir, 469 S.W.3d at 675 (citations omitted) (“If the plaintiff

sues the governmental unit, she is forever barred from suing the governmental unit’s

employees. . . . Because it is an irrevocable decision, ‘a plaintiff must proceed

cautiously before filing suit and carefully consider whether to seek relief from the

governmental unit or from the employee individually.’ This law ‘strongly favors

the scope of his or her employment and the suit could have been brought
against the governmental unit, [Tex. Civ. Prac. & Rem. Code Ann.] §
101.106(f).
253 S.W.3d 653, 657 (Tex. 2008) (citations omitted). But, as noted by the Fourteenth
Court of Appeals, although the Supreme Court in Garcia explained that subsection
(a) bars recovery against an employee when the plaintiff sues only the government
unit first, “the Garcia court did not state that this subsection applies only to situations
in which the plaintiff sues the governmental unit alone.” Fontenot v. Stinson, 369
S.W.3d 268, 275 n.9 (Tex. App.—Houston [14th Dist.], aff’d, Stinson v. Fontenot,
435 S.W.3d 793 (Tex. 2014) (citation omitted). We agree that Hartman’s election to
not only sue the Jefferson County Employees in their individual capacities, but also
to sue Jefferson County, triggered the application of subsection (a). See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(a); see also Alexander v. Walker, 435 S.W.3d
789, 791 (Tex. 2014) (explaining subsection (a) applies when an employee has been
sued in his individual and not official capacity); see also Tex. Dep’t of Aging &
Disability Servs. v. Cannon, 453 S.W.3d 411, 418 (Tex. 2015) (distinguishing that
subsections (e) and (f) of the TTCA apply to prevent suits against employees “for
conduct within the scope of their employment”).
12
dismissal of governmental employees.’ But claims against governmental employees

may be pursued if they do not fall within the election of remedies categories created

by section 101.106”). 7

In many ways, Fontenot v. Stinson is analogous to our case. 369 S.W.3d 268

(Tex. App.—Houston [14th Dist.], aff’d, Stinson v. Fontenot, 435 S.W.3d 793 (Tex.

2014). In Fontenot, the Fourteenth Court of Appeals held that a county employee

was entitled to dismissal of the plaintiff’s claims because of the plaintiff’s

irrevocable election under the TTCA. Id. at 269. The plaintiff filed suit against a

Harris County sheriff’s deputy for “various intentional torts, including slander, civil

conspiracy, ‘trespass, assault and battery, intentional infliction of emotional distress,

wrongful arrest, false imprisonment, and malicious prosecution[.]’” Id. Subsequent

to this filing, the plaintiff filed suit in federal court against Harris County, among

others. Id. After removal of the plaintiff’s claim against the sheriff’s deputy to

7
While Hartman never asserts that his tort allegations come under the TTCA,
we note that “[b]ecause the [TTCA] is the only, albeit limited, avenue for common-
law recovery against the government, all tort theories alleged against a governmental
unit, whether it is sued alone or together with its employees, are assumed to be ‘under
[the TTCA]’ for purposes of section 101.106.” Garcia, 253 S.W.3d at 659 (citation
omitted). This is true for intentional torts, including malicious prosecution, official
oppression and harassment claims. Johnson v. Boehnke, No. 03-19-00200-CV, 2019
WL 4458797, at *3 (Tex. App.—Austin Sept.18, 2019, no pet.) (mem. op.) (citations
omitted).

13
federal court, the plaintiff’s claims were consolidated. Id. at 270. Harris County then

filed a Rule 12(b)(6) motion requesting dismissal of the plaintiff’s complaints

against them. Id. Ultimately, the federal court dismissed the plaintiff’s claims against

Harris County and remanded the sheriff deputy’s case to state court for lack of

subject matter jurisdiction. Id. The sheriff deputy then moved for summary judgment

arguing he was protected by immunity under the TTCA sections (a), (e), and (f). See

id. The trial court denied his motion, and his appeal to the Fourteenth Court of

Appeals followed. See id.

In its decision, the Court of Appeals reasoned that the plaintiff’s suit in Federal

Court was brought “under this chapter” for purposes of the TTCA’s election of

remedies because “a suit alleging intentional torts against a governmental unit is a

suit ‘under this chapter’ for purposes of subsection (a).” Id. at 272. The court noted

that although the plaintiff attempted to allege § 1983 claims against Harris County,

she also “unambiguously” alleged common law torts against Harris County, and as

such, her “broadly alleged tort claims” established that she filed suit against a

governmental unit as provided in section 101.106(a). 8 Id. at 274–75. After

8
Although similar in many respects, one distinction in Fontenot was that the
plaintiff sued Fontenot in his official capacity, whereas here, Hartman argues that he
sued the Jefferson County Employees in their individual capacities. The Supreme
Court affirmed Fontenot, but it noted that the lower court incorrectly applied section
101.106(a) because the sheriff’s deputy was sued in his official capacity and not his
14
determining the applicability of the TTCA election of remedies to the plaintiff’s

claims, the Court held that “when [the plaintiff] filed suit against Harris County, the

filing constituted an irrevocable election against Harris County and immediately and

forever barred any suit or recovery against [the sheriff deputy] regarding the same

subject matter.” Id. at 276. The Court noted that “[t]his conclusion is not altered by

the fact that her suit against Harris County was the second-filed suit.” Id. Similarly,

Hartman’s claims against the Jefferson County employees in their individual

capacities are barred under the provisions of TTCA subsection (a).

Accordingly, we overrule Hartman’s first issue.9

individual capacity. See Fontenot, 435 S.W.3d at 794 (“[S]ubsection (f) is the
appropriate avenue for dismissing a government employee considered to have been
sued in his official capacity, while subsection (a) bars suit against an employee in
his individual capacity.”). Hartman affirms in his appellate brief that he is suing the
Jefferson County Employees in their individual capacities only.
9
Because we affirmed the trial court’s decision regarding section 101.106(a)
of the Texas Torts Claims Act, we need not address whether he is entitled to
dismissal under section 101.106(f). See Tex. Civ. Prac. & Rem. Code Ann. §§
101.106(a), (f); see Tex. R. App. P. 47.1 (requiring the appellate court to issue a
written opinion that is as brief as practicable but that addresses all issues necessary
to a final disposition of the case being appealed). We note that per the Texas
Supreme Court, section 101.106(f) applies to individuals sued in their official
capacity, while section 101.106(a) applies to those employees sued in their
individual capacity. Alexander, 435 S.W.3d at 791; Fontenot, 435 S.W.3d 793.
15
B. Witness Immunity

Witness immunity is well established in English common law. See Briscoe v.

LaHue, 460 U.S. 325, 330–31 (1983) (discussing witness immunity in the context

of § 1983 claims); Lombardo v. Traughber, 990 S.W.2d 958, 960 (Tex. App.—

Beaumont 1999, pet. denied). In Briscoe, the United State Supreme Court

extensively examined English common law and American jurisprudence when

addressing witness immunity. See Briscoe, 460 U.S. at 330–46. Ultimately, the

Supreme Court held that the principles of absolute immunity that apply to judges

and prosecutors likewise extend to witnesses and are indispensable in bringing

litigation “to a just – or possibly unjust – conclusion[.]” Id. at 345–46. Albeit a harsh

consequence for the injured party of a perjurious statement, the court reasoned that

civil redress was unnecessary because a witness could face criminal charges for

perjurious statements, which provided a sufficient deterrent. Id. at 342; see also

Rehberg v. Paulk, 566 U.S. 356, 367 (2012); Shell Oil Co. v. Writt, 464 S.W.3d 650,

655 (Tex. 2015).

In examining whether a witness is entitled to absolute immunity, we take a

functional approach. See Briscoe, 460 U.S. at 342–43. “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.’” Delcourt v. Silverman, 919 S.W.2d 777,

16
782 (Tex. App—Houston [14th Dist.] 1996, no pet.) (quoting Briscoe, 460 U.S. at

335). Briscoe elaborated on this concept by examining the witness’s function and

the witness’s relationship to the judicial process.

[O]ur cases clearly indicate that immunity analysis rests on functional
categories, not on the status of the defendant. A police officer on the
witness stand performs the same functions as any other witness; he is
subject to compulsory process, takes an oath, responds to questions on
direct examination and cross-examination, and may be prosecuted
subsequently for perjury.

Briscoe, 460 U.S. at 342 (citations omitted).

The Texas Supreme Court has long recognized that communications made in

judicial proceedings are privileged and has extended that privilege to pretrial

proceedings, “including affidavits filed with the court.” Bird v. W.C.W., 868 S.W.2d

767, 771 (Tex. 1994) (citing James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982)).

And while Bird concerned immunity and liability in relation to defamation and

slander suits, several of our sister courts have extended witness immunity to all civil

cases. See In re Hinterlong, 109 S.W.3d 611, 636 (Tex. App.—Fort Worth 2003, no

pet.) (“Because the proper administration of justice requires full and free disclosure

from witnesses unhampered by fear of retaliatory lawsuits, Texas courts have

consistently applied the privilege to claims arising out of communications made in

the course of judicial proceedings, regardless of the label placed on the claim and

even though the communications might otherwise subject a witness to statutory
17
liability.”); Crain v. Unauthorized Practice of Law Comm. of the Sup. Ct. of Tex., 11

S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (“This Court

has held that the judicial privilege is not limited to claims of libel or slander, and it

should be applied to claims arising out of communications made in the course of

judicial proceedings, regardless of the label placed on the claim.”); Martin v.

Darnell, 960 S.W.2d 838, 845 (Tex. App.—Amarillo 1997, no pet.) (noting that it is

a “well established rule granting witness immunity from civil liability for statements

made in a judicial proceeding”). We agree.

At common law, the absolute immunity of parties and witnesses from
subsequent liability for their testimony in judicial proceedings is well
established. Any communication, even perjured testimony, made in the
course of a judicial proceeding, cannot serve as a basis for a suit in tort.
The administration of justice requires “full and free disclosure from
witnesses unhampered by fear of retaliatory lawsuits.”

McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.—Dallas 2001, pet. denied)

(citations omitted).

In his brief, Hartman argues that the affidavits provided by Kim Carter, Misty

Craver, Tiffani Decuir, E. Perry Thomas, Clint Woods, Tish Jones, and Jodee Roach

were “not provided in connection with a court’s ongoing adjudication of a case[,

and] [a]ll these affidavits were prepared before Walker illegally hired [the District

Attorney Pro Tem].” We are not persuaded by these arguments. It is undisputed that

Hartman was arrested, and the affidavits were prepared and presented to the Sheriff’s
18
Department in their ongoing investigation of Hartman’s arrest. Assuming without

deciding that Hartman’s arrest was illegal, the affidavits prepared and presented in

the investigation were made in the course of a judicial proceeding (i.e., the

investigation into Hartman’s arrest) and are covered by absolute witness immunity.

“We are convinced that Texas law regards its privilege for communications made in

the context of judicial, quasi-judicial, or legislative proceedings as a complete

immunity from suit, not a mere defense to liability.” Shanks v. AlliedSignal, Inc.,

169 F.3d 988, 992 (5th Cir. 1999). 10

10
In support of his argument that the employees are not entitled to witness
immunity, Hartman states that “[t]here is no general right for government employees
to commit perjury.” Hartman is incorrect. The United States Supreme Court along
with Texas Courts have established that witness protection applies to perjurious
testimony. See Briscoe v. LaHue, 460 U.S. 325, 345 (1983) (“There is, of course, the
possibility that, despite the truth-finding safeguards of the judicial process, some
defendants might indeed be unjustly convicted on the basis of knowingly false
testimony by [witnesses.] . . . [T]he absolute witness immunity bars another possible
path to recovery for these defendants. But we have recognized, again and again, that
in some situations, the alternative of limiting the official’s immunity would disserve
the broader public interest.”); see also Tumlinson v. Barnes, No. 03-15-00642-CV,
2017 WL 1832488, at *3 n.17 (Tex. App.—Austin May 5, 2017, no pet.) (mem. op.)
(“Texas does not recognize a civil cause of action for perjury and [] witnesses and
parties who testify in judicial proceedings are entitled to absolute immunity from
subsequent civil liability for their testimony, even perjured testimony.”) (citations
omitted).
19
 Therefore, we hold that Kim Carter, Misty Craver, Tiffani Decuir, E. Perry

Thomas, Clint Woods, Tish Jones, and Jodee Roach have absolute witness immunity

and overrule Hartman’s second issue. 11,

C. Prosecutorial Immunity

The trial court ruled “the motion should be granted on the issue of

prosecutorial immunity as to the following defendants: Tom Maness, Tom Rugg, Ed

Shettle, E. Perry Thomas, and Clint Woods.” 12 Each defendant was an employee of

the Jefferson County District Attorney’s office at the time of Hartman’s arrest and

11
Although we have previously noted that witness immunity may not extend
to a conspiracy to provide false testimony, Hartman has presented no evidence to
this Court that these witnesses were involved in a conspiracy to submit false
affidavits. See Hartman v. Estate of Alford, No. 09-19-00051-CV, 2019 WL
4493329, at **3–4 (Tex. App.—Beaumont Sept. 19, 2019, pet. denied) (mem. op.)
(citing Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). Hartman’s allegations that other
defendants were involved in a conspiracy and later indicted for their actions does not
provide any evidence that the affidavits submitted by these particular witnesses was
not based on their own subjective views of Hartman’s arrest. As such, we are
unpersuaded that the affidavits were produced in a conspiracy to present false
testimony.
As noted in Marshall v. Odom, Federal Circuit Courts of Appeals that have
addressed this issue are divided on whether absolute immunity applies to civil
conspiracies to fabricate evidence, but a majority of circuits have held that absolute
immunity extends to civil conspiracy. 156 F. Supp. 2d 525, 533–34 (D.Md. 2001)
(noting that the Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of
Appeals support absolute immunity and Second and First Circuits do not support
absolute immunity).
12
We have already concluded that Clint Woods and E. Perry Thomas are
entitled to witness immunity, and therefore, we will not address whether they are
entitled to prosecutorial immunity as granted by the trial court.
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during the subsequent events that form the basis of Hartman’s lawsuit. In arguing

that the trial court erred by granting prosecutorial immunity to the district attorneys,

Hartman states “Maness, Rugg, Shettle, Thomas, and Woods are not prosecutors in

this case. Their job title is irrelevant.” Hartman then details actions which he believes

show they did not act as prosecutors in this case.

Prosecutors enjoy absolute immunity under common law. Imbler v.

Pachtman, 424 U.S. 409, 427 (1976). “Texas courts have followed federal courts

and consistently held as a matter of law that absolute immunity extends to quasi-

judicial officers, including prosecutors performing such typical prosecutorial

functions as initiating criminal prosecution and presenting the State’s case.” Brown

v. Lubbock Cty. Comm. Ct., 185 S.W.3d 499, 505 (Tex. App.—Amarillo 2005, no

pet.) (citing Oden v. Reader, 935 S.W.2d 470, 474–75 (Tex. App.—Tyler 1996, no

pet.)). “Activities intimately associated with the judicial phase of the criminal

process, such as initiating a prosecution and presenting the State’s case, are functions

to which absolute immunity applies with full force.” Lesher v. Coyel, 435 S.W.3d

423, 430 (Tex. App.—Dallas 2014, pet. denied).

Prosecutorial immunity has also been extended to bad acts performed by

prosecutors. See Imbler, 424 U.S. at 427 (noting that absolute immunity applies to a

prosecutor who engages in “malicious or dishonest action”); see also Burns v. Reed,

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500 U.S. 478, 489–90 (1991) (explaining that “prosecutors and other lawyers were

absolutely immune from liability for damages at common law for making false or

defamatory statements in judicial proceedings . . . and also for eliciting false and

defamatory testimony from witnesses”); Lesher, 435 S.W.3d at 430–31 (applying

absolute immunity to a prosecutor accused of withholding grand jury handbook from

grand jury and presenting inadmissible evidence); Clawson v. Wharton County, 941

S.W.2d 267, 272 (Tex. App.—Corpus Christi, 1996 pet. denied) (determining that a

prosecutor accused of taking bribes still enjoys absolute immunity because

“[a]bsolute immunity will shelter a prosecutor even should he act maliciously,

wantonly, or negligently”); Gentry v. Smith, No. 05-18-01181-CV, 2019 WL

4033947, at *3–4 (Tex. App.—Dallas Aug. 27, 2019, no pet.) (mem. op.)

(concluding a prosecutor accused of falsifying a plea agreement was entitled to

absolute immunity).

This absolute immunity is effective against all civil lawsuits whether the

allegations are lodged against the individual in his personal or official capacity.

Clawson, 941 S.W.2d at 273; see also Lesher, 435 S.W.3d at 430; Brown, 185

S.W.3d at 505. A prosecutor is entitled to absolute immunity for their judgment and

presentation of the evidence and conduct at trial. See Imbler, 424 U.S. at 427.

Allowing anything less than absolute immunity would result in an “adverse effect

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upon the criminal justice system” and “better to leave unredressed the wrongs done

by dishonest officers than to subject those who try to do their duty to the constant

dread of retaliation.” See id. at 428 (citations omitted). Qualifying a prosecutor’s

immunity “would prevent the vigorous and fearless performance of the prosecutor’s

duty that is essential to the proper functioning of the criminal justice system.” Id. at

427–28.

Hartman argues that absolute prosecutorial immunity is “qualified immunity”

and does not apply to Maness, Shettle, and Rugg, because “[t]here is no immunity

for actions occurring before there is probable cause for an arrest - - which includes

all the investigative functions.” We disagree. The United State Supreme Court has

determined that prosecutorial immunity is absolute. See id. at 427–29. This absolute

immunity applies to any actions that are “intimately associated with the judicial

phase of the criminal process.” Clawson, 941 S.W.2d at 272. When analyzing this

issue, a court should follow a “functional approach” and review “the nature” of the

function and not “the identity of the actor who performed it[.]” See Buckley v.

Fitzsimmons, 509 U.S. 259, 269–71 (1993) (citations omitted). This instruction is

broad enough to include a prosecutor’s drafting of search warrants. See id.

Hartman’s allegations against Maness and Shettle that they participated in

“falsifying evidence and writing a perjured search warrant[,]” clearly fall under

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absolute prosecutorial immunity, regardless of whether Maness and Shettle had

malicious intent. Therefore, we overrule Hartman’s fourth issue.13

IV. Conclusion

Having overruled Hartman’s first, second, and fourth issues regarding the

TTCA, witness immunity, and prosecutorial immunity, we affirm the trial court’s

judgment.14

13
Hartman alleges in his petition that his claims against Rugg arise solely
from his failure to answer nine public information requests sent on Hartman’s behalf
from Hartman’s employer. Hartman asserts in his brief that Rugg is not entitled to
prosecutorial immunity because he is a former civil assistant district attorney and
was never a prosecutor. Hartman’s own pleadings admit that Rugg reported to
Maness as his direct supervisor and that Rugg was tasked with handling all public
information requests for the district attorney’s office. Hartman also admits that his
public information request dealt solely with information regarding the investigation
and subsequent criminal charges against Hartman. By Hartman’s own admissions,
we conclude that Rugg’s conduct in reviewing and responding to public information
requests based on the arrest and investigation of Hartman was a part of his duties of
his employment as an assistant district attorney and the preparation and investigation
into Hartman and is covered by absolute prosecutorial immunity. See Buckley v.
Fitzsimmons, 509 U.S. 259, 278 (1993) (explaining that prosecutor’s actions are
entitled to absolute immunity when they involve “the initiation of a prosecution, the
presentation of the State’s case in court, or actions preparatory for these functions,”
and distinguishing actions not entitled to absolute immunity such as statements to
the press that have no “functional tie to the judicial process”).
14
Because we determine the trial court is without jurisdiction to consider
Hartman’s claims pursuant to subsection 101.106(a), we do not address the
remainder of Hartman’s issues as they are not necessary for final disposition of the
appeal. See Tex. R. App. P. 47.1.

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 AFFIRMED.

_________________________
CHARLES KREGER
Justice

Submitted on June 10, 2019
Opinion Delivered February 20, 2020

Before McKeithen, C.J., Kreger and Horton, JJ.

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