Town of South Padre Island v. Jacobs

OPINION ON MOTION FOR REHEARING

SEERDEN, Justice.

Appellant, Johnny P. Smith, filed a motion for rehearing asserting that the original opinion in this case, holding him liable for $24,000 actual damages and $50,000 exemplary damages, was error. He argues, in addition to other theories, that he is entitled to absolute immunity from liability for any statements made by him in connection with appellee’s termination, regardless of whether the statements were truthful and regardless of the motive or malice in which the statements were made.

In Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942), the Supreme Court set out certain well-settled rules regarding the doctrine of absolute privilege:

1.An absolutely privileged communication is one for which, by reason of the occasion upon which it is made, no remedy exists in a civil action for libel or slander. Stated in another way, where there is an absolute privilege, no action in damages for language, oral or written, will lie; and this is true even though the language is false and uttered or published with express malice.
2. Any communication, oral or written, uttered or published in the due course of a judicial proceeding is absolutely privileged and cannot constitute the basis of a civil action in damages for slander or libel. The falsity of the statement or the malice of the utterer is immaterial, and the rule of nonliability prevails even though the statement was not relevant, pertinent and material to the issues involved in the case.
3. The rule that communications uttered or published in the course of a judicial proceeding are absolutely privileged, applies to proceedings before executive officers, and boards and commissions which exercise quasi-judicial powers.

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. Reagan, 166 S.W.2d at 913. 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. Barr v. Matteo, 360 U.S. 564, 565, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). The likelihood of this later event seems less likely to occur because of the requirement that the utterance or statement be made in a judicial or quasi-judicial proceeding where the potentially injured party has the right to reply and defend himself.

Appellant, Smith, was a public official, and the memo and statements he made concerned another public official. The statements were made in the performance of Smith’s duties as City Manager. While Jacobs was not present at the Board of Aldermen’s meeting on February 2, 1983, when the Board discussed Jacob's firing, *144Smith’s memo of February 3 was given to Jacobs the day it was prepared and contained the charges and complaints being made against Smith. It is clear that this memo was prepared for Jacobs’ use when he appeared before the Board on February 16. The Board’s meeting on February 16 and the proceedings leading to it, including the meeting of February 2, as well as the preparation of the memo of February 3, constituted a quasi-judicial proceeding within the meaning of the third rule as set out in Reagan, 166 S.W.2d at 912.

The nature and incidence of quasi-judicial powers were set out in Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex.App.— Houston [1st Dist.] 1982, writ ref’d n.r.e.):

A quasi-judicial power has been described as the power or duty to investigate and to draw conclusions from such investigation. Id. At least six powers have been delineated as comprising the judicial function and would be indicative of whether a commission was acting in a quasi-judicial, or merely and administrative, capacity: 1) the power to exercise judgment and discretion; 2) the power to hear and determine or to ascertain facts and decide; 3) the power to make binding orders and judgments; 4) the power to affect the personal or property rights of private persons; 5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and 6) the power to enforce decisions or impose penalties, (cites omitted).
An administrative agency need not have all of the above powers to be considered quasi-judicial, but certainly the more of these powers it has, the more clearly is it quasi-judicial in the exercise of its powers.

In this case, the Town’s Board of Aider-men had all of the powers enumerated above with the possible exception of the power to compel the attendance of witnesses.

This Court, in the recent case of City of Dallas v. Moreau, 718 S.W.2d 776, 779 (Tex.App. — Corpus Christi 1986, writ ref'd n.r.e.), held that hiring and firing of city employees is a governmental function for which the city itself is immune from suits for libel. In that case we held that, in light of such governmental immunity, the trial court should have disregarded jury answers finding that the city had libeled its employee and had published private facts about him which were defamatory as immaterial. The extension of absolute privilege to utterances during judicial or quasi-judicial proceedings gives to individuals the same latitude and freedom of expression during such proceedings as the doctrine of governmental immunity gives to the governmental body itself.

We hold that the actions of appellant, Johnny P. Smith, City Manager of the Town of Sought Padre Island, in connection with the investigation and evaluation of the job performance of appellee, Fred R. Jacobs, an employee of the same Town, and the statements and writings, including the memo of February 3, 1983, were protected by absolute privilege and that the trial court erred in granting judgment against Smith based on the jury’s answers to issues 12 through 16. The issues should have been disregarded. Appellant Smith’s point of error number twenty is sustained. Everything in our original opinion contrary to what is stated herein is withdrawn and should be disregarded.

The judgment of the trial court is REVERSED and RENDERED that appellee take nothing.

BENAVIDES, J., not participating.